-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

RICHARD A. KRUEGER and MAUREEN FALLON-KRUEGER,

Plaintiffs-Appellants, UNPUBLISHED September 27, 2016

v No. 328787
Kent Circuit Court
SPECTRUM HEALTH SYSTEMS and SAM J. GIOVANNUCCI, M.D., LC No. 15-003966-NO

Defendants-Appellees.

Before: M URRAY , P.J., and H OEKSTRA and B ECKERING , JJ.

P ER C URIAM

.

This appeal arises from the trial court’s dismissal of the med ical malpractice claim plaintiffs Richard Krueger and hi s wife Maureen Fallon-Krueger filed against defendants Spectrum Health Systems and Sam J. Giovannucci, M.D., on May 1, 2015. Plaintiffs appeal as of right the trial court’s orde r granting summary disposition t o defendants pursuant to MCR 2.116(C)(7) (expiration of statute of limitations). For the re asons stated below, we reverse the
trial court’s order and remand t he matter to the court for furt her proceedings.

I. STATEMENT OF FACTS

The basic facts of the case ar e undisputed. Dr. Giovannucci h ad been the primary care physician for Richard Krueger si nce the mid-1980s. In March 20 07, after Krueger experienced a significant period of abdominal pain and diarrhea, Dr. Giovannu cci referred Krueger to gastroenterologist Dr. Randall Meisner for evaluation. Tests c onducted as part of Dr. Meisner’s evaluation showed that Krueger ha d a small (3.7 cm maximal dime nsion) abdominal aortic aneurysm, often referred to as an AAA. In a letter dated March 14, 2007, Dr. Meisner advised Dr. Giovannucci of the results of his evaluation of Krueger, in cluding his discovery of the abdominal aortic aneurysm, and at an April 2, 2007 office visit , Dr. Giovannucci discussed the abdominal aortic aneurysm with Krueger. Krueger continued to s ee either Dr. Giovannucci or his physician’s assistant annually for the next seven years, an d neither Dr. Giovannucci nor his physician’s assistant ordered an y diagnostic testing to check o n the status of Krueger’s abdominal aortic aneurysm. Krueger’s aneurysm had grown to 7 c m maximal dimension when it burst on April 10, 2014.-2- On November 25, 2014, plaintiffs served on defendants a notice of intent (NOI) to file a claim. On May 1, 2015, they filed a medical malpractice compla int alleging that the applicable standard of care required Dr. Gi ovannucci to arrange for annual diagnostic testing of Krueger’s aneurysm or to refer him to a specialist for su ch testing, and that Dr. Giovannucci breached the standard of care by failing to do either. Accompanying the com plaint was an affidavit of merit signed by Neil J. Farber, M.D., al so asserting that the applicable standard of care called for Dr. Giovannucci to “arrange yearly F ollow-up by ultrasound or CT” a nd that Dr. Giovannucci’s failure to arrange for such testi ng breached the standard of ca re.

On June 29, 2015, defendants filed a motion for summary dispos ition based on MCR 2.116(C)(7). Noting that medical malpractice claims must be br ought within six years of the act or omission that is the basis of the claim, defendants asserted that plaintiffs’ claim was barred because Dr. Giovannucci’s alleged failure to “arrange for annua l diagnostic testing” occurred in March 2007, more than eight years before plaintiffs filed their complaint. Plaintiffs responded
that Dr. Giovannucci violated th e standard of care on numerous occasions after 2007, most recently in February 2014, when Krueger presented for his most- recent annual physical
examination and Dr. Giovannucci failed to assess the size of th e aneurysm despite knowing that it existed and that he was suppos ed to monitor its growth. Pla intiffs contended that such failure constituted a separate and indepe ndent act of malpractice and t hat they had filed their complaint within two years of this incidence.

The parties maintained their respective positions at the July 17, 2015 hearing on defendants’ summary disposition motion. Defendants argued in a ddition that plaintiffs were attempting to assert a theory of continuous wrong that reached back to March 2007, and “essentially gave rise to a new accrual date every year at the time of [Krueger’s] annual physical examination.” Plaintiffs asserted that they were not alleging a continuing wrong, but that a “new tort occurred on February 7, 2014, when [Krueger] was treated f or his annual physical and no diagnostic testing was arranged for.” To the extent that they had not clearly articulated this allegation in their complaint, pl aintiffs requested leave to am end the complaint. Defendants opposed their request, arguing that amendment would be futile b ecause any duty Dr. Giovannucci owed to Krueger arose in 2007, when Dr. Giovannucci received Dr. Meisner’s letter of March 14, 2007, and did not set up a future schedule for annual testing. Consequently, defendants argued, each annual examination without diagnostic t esting, including the one in February 2014, simply constituted another occurrence of the sam e omission.

The trial court granted defendants’ summary disposition motion in a July 27, 2015 opinion and order, reasoning that plaintiff’s claim was time-ba rred because Dr. Giovannucci’s duty arose in March 2007. Consis tent with defendants’ reasonin g, the trial court also determined that granting leave to amend the complaint would be futile beca use “[Krueger’s] arguments are an impermissible backdoor attempt to stretch an omission in 200 7 into a ‘continuing-wrong.’ ” This appeal followed.

II. ANALYSIS

On appeal, plaintiffs contend that the trial court erred by mi sconstruing their pleadings to allege a claim for medical malpractice based on acts and omissi ons committed in March 2007,-3- rather than on Dr. Giovannucci’s f ailure to monitor Krueger’s a neurysm by ordering the appropriate diagnostic tests every year. We agree.

We review de novo a trial court's decision on a motion for sum mary disposition, as well as whether the trial court correctly selected, interpreted, and applied the relevant statutes.

Kincaid v Cardwell , 300 Mich App 513, 522; 834 NW2d 122 (2013). Summary disposit ion under MCR 2.116(C)(7) “is appropriate when the undisputed facts establish that the plaintiff’s claim is barred under the appli cable statute of limitations.” Id . at 522. “In reviewing a motion under Subrule (C)(7), the circuit court ‘must accept the nonmov ing party's well-pleaded allegations as true and construe the allegations in the nonmova nt's favor . . . .’ ” Stephens v Worden Ins Agency, LLC , 307 Mich App 220, 227; 859 NW2d 723 (2014), quoting Diehl v Danuloff , 242 Mich App 120, 123; 618 NW2d 83 (2000).

This Court discussed at length the establishment of an accrual date for medical malpractice claims in Kincaid , 300 Mich App at 524-531. We first noted that, because the Legislature did not originally provide an accrual point for med ical malpractice claims, courts relied upon the common-law “last-treatment rule.” The essence of the last-treatment rule was that “the cessation of the ongoing patient-physician relationsh ip marks the point where the statute of limitations begins to run.” Kincaid , 300 Mich App at 524 (quotation marks and citation omitted). However, in 1986, the Legislature abolished the last-treatment rule and
established that the accrual date for medical malpractice claim s would be determined based on
“the act or omission that occasioned the harm.” 1 Id . at 525.

Accordingly, a claim based on allegations of medical malpracti ce “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). A plaintiff may begin a medical malpractice claim within two year s of the act or omission upon which the claim is based, “or within six months after the plain tiff discovers or should have discovered the existence of the claim, whichever is later.” MC L 600.5838a(2); MCL 600.5805(6). However, barring certa in exceptions inapplicable to the case at hand, 2 “the claim
shall not be commenced later t han 6 years after the date of the act or omission that is the basis for the claim.” MCL 600.5838a(2).

We explained that reference in MCL 600.5838a(1) to “the act or omission” does not foreclose the possibility that a plaintiff’s injury can be rela ted to multiple acts or omissions:

[W]hile the Legislature referred to “the act or omission” that is the basis for “the claim,” MCL 600.5838a(1), the Legislature did not limit a plain tiff to asserting a single claim for medical malprac tice for any given injury. Bec ause a plaintiff's injury can be causally related to multiple acts or omissions, i t is possible for the

1 1986 PA 178, § 1, adding MCL 5838a, e ffective October 1, 1986.

2 The exceptions involve plainti ffs who are minors or insane at the time their cause of action accrues. See MCL 600.5851(7) and (8).-4- plaintiff to allege multiple claims of malpractice premised on discrete acts or omissions—even when those acts or omissions lead to a single in jury—and those claims will have independent accrual dates determined by the da te of the specific act or omission at issue. [ Kincaid , 300 Mich App at 525.]

We cautioned, however, that a pla intiff’s license “to plead mu ltiple accrual dates does not mean that the plaintiff may resurrect the last-treatment rule t hrough ambiguous or creative pleading.” Id . at 525-526. To establish an accrual date, “[a] plaintiff mus t provide sufficient facts in his or her complaint to give the defendant notice of t he claims against which he or she
must defend . . . .” Id . at 529, citing MCR 2.111(B)(1). “Depending on the complexityof the acts or omissions at issue, this may require a plaintiff to ide ntify with some degree of specificity how the physician breached the standard of care.” Kincaid , 300 Mich App at 530.

In the instant case, plainti ffs’ NOI alleged the following:

Not long after Dr. Meisner advi sed Dr. Giovannucci of Mr. Krue ger’s abdominal aortic aneurysm, Mr. Krueger saw Dr. Giovannucci who told Rick [Krueger] that he had “a small abdominal aortic aneurysm which we’ll have to keep an eye on.”

Dr. Giovannucci and his Physicia n’s Assistants continued to se e Richard Krueger annually for Physicals. No follow up angiography nor [ sic] referrals
were made which would have enabled Dr. Giovannucci or a Pulmona ry Specialist to know about the size of the patient’s abdominal aortic aneury sm, as time went by, and on April 10, 2014 it ruptured a t a time when it was gre ater than 7 cm.

Plaintiffs asserted that the applicable standard of practice o r care required that Dr. Giovannucci “either order periodic diagnostic angiography to as certain the size of the aortic aneurysm after he became aware of it in March of 2007, or refer his patient to a Pulmonary Specialist who had agreed to assume that responsibility.” 3 Plaintiffs further alleged that, in order to comply with the standard of p ractice or care, Dr. Giovannucc i “should have annually ordered appropriate diagnostic angiography to ascertain the size of his patient’s aortic aneurysm and he should have referred his patient to a Pulmonary Specialist for testing and care.” Finally, plaintiffs contended that, “[b]y not keeping track of the size of his patient’s aortic aneurysm, Dr. Giovannucci . . . was not able to as he put it to his patient i n 2007 ‘keep an eye on it,’ and it was never surgically repaired by nonurgent surgery and it therefore burst when it was greater than 7 cm on April 10, 2014 . . . .”

Plaintiffs’ complaint provided a similar statement of the stan dard of care and of Dr. Giovannucci’s alleged breach:

3 Presumably, the “Pulmonary Specialist” referenced is Dr. Meisn er, who is in fact a gastroenterologist.-5- The Applicable Standard of Care or Practice required that afte r Dr. Giovannucci, an agent of Spectrum Health Systems, became aware of his patient’s abdominal aortic aneurysm of 37 mm [4] maximal dimension on or about March 14, 2007, he arrange for annual diagnostic testing of the aneurysm and at the appropriate time, refer him for repair of the aneurysm.

Dr. Giovannucci, an agent of Spectrum Health Systems, breached the Applicable Standard of Care or Practice by not arranging for an nual diagnostic testing of his patient’s abdominal aortic aneurysm, and as a re sult, that aneurysm burst on April 10, 2014 . . . .

The accompanying affidavit of merit also asserted that the app licable standard of care called for Dr. Giovannucci to “arrange yearly Follow-up by ultr asound or CT” and that Dr. Giovannucci’s failure to arrange for such testing breached the standard of care.

Plaintiffs contend that these pleadings, when viewed in the li ght most favorable to them, adequately put defendants on notice that they must defend again st allegations that Dr. Giovannucci had an annual duty to arrange for diagnostic testin g of Krueger’s aneurysm and that he breached this duty anew at every annual examination where he failed to conduct or order such testing. Defendants assert to the contrary that the plain lang uage of the complaint alleges only one breach of the standard of care that occurred in March 2007, when Dr. Giovannucci did not arrange for future testing. In su pport of their argument, defe ndants stress the language in plaintiffs’ complaint asserti ng that, once Dr. Giovannucci beca me aware of Krueger’s aneurysm in March of 2007, the applicable s tandard of care required him to “arrange for annual diagnostic testing of the aneurysm” and thathe breached the standard “by not arranging for annual diagnostic testing.”

Read in isolation, one could see how the complaint as worded c ould be interpreted as identifying one act of malpractice in 2007 in the form of a fai lure to arrange for yearly follow-up testing. Read in context, however , the meaning is clear, and t he trial court erred by not reading the pleadings in the light most favorable to plaintiffs. Tryc , 451 Mich at 134; Kincaid , 300 Mich App at 522. Reading the complaint alongside Dr. Farber's affid avit of merit and plaintiffs' NOI makes it clear that plaintiffs are alleging that Dr. Giovannucc i had a duty to monitor Krueger’s aneurysm by ordering the appropri ate test every year. Plaintif fs state in the NOI that Dr. Giovannucci should have “annually o rdered appropr iate diagnosti c angiography to ascertain the size of his patient’s aortic aneurysm,” and that he breached hi s duty “by not keeping track of the size of [Krueger’s] aneurysm.” Furthermore, Dr. Farber’s affid avit of merit states that after becoming aware of Krueger’s ane urysm, Dr. Giovannucci should ha ve arranged yearly follow-up by ultrasound or CT. Thus, when the NOI is read alongside the complaint and affidavit of merit, it is obvious that plaintiffs did not allege that Dr. Giovannuc ci breached the standard of care when he neglected to set up a long-range timetable of future te sting in 2007. Rather, they

4 Plaintiffs alternate between centimeters (cm) and millimeters (mm) when describing the dimensions of Krueger’s aneurysm. Ten millimeters equals one c entimeter. Merriam-Webster’s Collegiate Dictionary (2003), p 782.-6- alleged that Dr. Giovannucci breached the standard of care by f ailing to order testing on an annual basis in each of the following years in order to monitor the size of Krueger’s aneurysm.

Defendants contend that, even if the complaint does allege annual breaches of the applicable standard of care, such alleged breaches do not give rise to discrete acts or omissions that would extend the accrual date of plaintiffs’ claim beyond 2007 because any omission subsequent to 2007 simply continued the allegedly improper omis sion first committed in March 2007. We disagree.

We established that adherence t o a prior diagnosis or treatmen t plan does not constitute a separate act or omission for purposes of the accrual date of a medical malpractice claim in McKiney v Clayman , 237 Mich App 198, 205-208; 602 NW2d 612 (1999). We revisited the
issue of accrual dates in Kincaid , explaining that our McKiney decision did not immunize from liability a physician who simply adhered “to a mistaken diagnos is or treatment plan at all subsequent appointments.” Kincaid , 300 Mich App at 535. Rather, “a physician must act within
the standard of care on each visit, and a physician’s conti nued adherence to a particular di agnosis or treatment plan at a later appointment might constitute a bre ach of the standard of care if there
are facts that show that conti nued adherence was unreasonable.” Id

.

Defendants rely on Kincaid to argue that, because plaintiffs did not offer facts indicati ng that Krueger “presented with new or worsening symptoms” at the February 7, 2014 examination, any alleged failure to order a di agnostic test of Krueger’s ane urysm at that examination did not constitute a separate breach of the standard of care and, there fore, cannot extend the accrual date of plaintiffs’ claim.

Defendant’s reliance is misplaced. The plaintiff in Kincaid injured her left foot when she dropped a piece of lumber on it. Kincaid , 300 Mich App at 517. The defendant doctor, Cardwell, treated her five times between April 25, 2008, and Ju ly 9, 2008, while the pain in her
foot became worse and her foot more discolored. Id . at 518-519. Eventually, gangrene developed in her left great and fourth toes, and the defendant referred her to another doctor for amputation of those two toes. Id . at 519. However, because there were by this time “no bypassable blood vessels with which to revascularize her foot[, ]” the surgeon amputated the plaintiff’s left leg below the knee. Id

.

Kincaid filed a medical malpractice claim based on acts and om issions committed during the course of Cardwell’s allegedl y erroneous course of treatmen t. See id . at 519. Significantly, however, Cardwell’s course of treatment was founded on the unde rlying breach, which was the
initial substandard assessment and treatment. See id . at 533. Thus, Cardwell’s pursuit of the treatment plan as intended constituted a continuation of that i nitial breach. In contrast, in the instant case, the original dia gnosis was not the underlying bre ach. Rather, Dr. Giovannucci received the correct diagnosis and formulated the correct asses sment plan in light of the known presence of the aneurysm. The breaches came later, when Dr. Gi ovannucci failed to assess the growth of Krueger’s accurately di agnosed and charted aneurysm e ach time Krueger presented for an annual check-up for purposes of assessing his health and wel lbeing. Dr. Giovannucci failed-7- to implement any treatment, even after he indicated, “we’ll have to keep an eye on” the

aneurysm. 5 Thus, unlike Kincaid and McKiney , this is not a case where plaintiffs could allege that defendants misdiagnosed the medical situation or failed to have a plan of treatment that complied with the applicable sta ndard of care. Dr. Giovannucci had a correct diagnosis and set forth a plan of treatment; plaint iffs allege simply that, at ea ch annual examination, he failed to implement his plan, and in that regard, he breached the standar d of care at each exam, including in February of 2014, while there w as still time for surgical in tervention and repair. As such, the accrual dates for the malpractice are tied to each annual breac h, not to the original diagnosis. 6

Further, defendants’ assertion that, because Krueger did not p resent with worsening symptoms Dr. Giovannucci did not have a new duty to order a dia gnostic test at the February 7, 2014 examination, overlooks the fact that the change in the ane urysm’s status, and hence in Krueger’s condition, was detectable only by means of the tests Dr. Giovannucci was not ordering. 7 It also overlooks the fact that the standard of care called f or monitoring through annual tests, regardless of how K rueger presented. Further, fr om the fact that the aneurysm was nearly twice its original size w hen it burst approximately two months after the February examination, one might reasonably conclude that Krueger did pre sent on February 7, 2014, with a worsening, albeit undetecte d for lack of tes ting, condition.

When viewed in the light most favorable to plaintiffs, Kincaid , 300 Mich App at 522, plaintiffs’ pleadings presented facts sufficient to put defenda nts on notice of plaintiffs' allegations that Dr. Giovannucci had a duty to monitor Krueger’ s aneurysm by ordering the appropriate test every year and that the doctor breached the du ty every year he failed to do so, id

. at 529. Defendants’ argument that any alleged failure to test in the years subsequent to 2007 constituted a continuing wrong fa ils because, unlike the plaint iffs in McKiney and Kincaid

, plaintiffs do not base their al legations on an initial misdiagn osis and erroneous treatment plan. The breaches upon which plaintiffs base their claim did not occ ur in 2007, but every year thereafter when Dr. Giovannucci failed to assess the growth of Krueger’s accurately diagnosed and charted aneurysm at Krueger’s annual check-ups. The most r ecent alleged breach occurred

5 The “keep an eye” statement occurs in the NOI, but not the com plaint. The NOI is “other documentary evidence,” MCR 2.116(G)(5), and may be considered a long with plaintiffs’ complaint in deciding a (C)(7) motion. Kincaid , 300 Mich App at 532.

6 As plaintiffs aptly point out, in reaching its result, the tri al court had to conclude that the only claim of malpractice that plaintiffs had in this case was for a cts and omissions that occurred in 2007. But as noted above, the acts of malpractice in this case transpired later, when Dr. Giovannucci failed each year to either order angiographic testi ng or refer Krueger to a specialist for such testing in order to m onitor the growth of the known, d ocumented, aneurysm as planned.

7 It appears that the trial court also misapprehended the nature of an abdominal aortic aneurysm. A change in symptoms is not what precipitates a need for furthe r analysis or a need to re-assess the initial conclusion. Rather, t ime is the only factor that c auses the aneurysm to grow in size (as blood pressure continues to weaken the aortic wall), and surger y or other intervention is necessary when the aneurysm reaches 5 centimeters.-8- February 7, 2014, less than two years prior to plaintiffs’ fili ng their malpractice complaint. For these reasons, we conclude that the trial court erred in granti ng summary disposition to defendants under MCR 2.116(C)(7) on the ground that plaintiffs’ complaint was time-barred.

In light of our reasoning in the disposition of this issue, we need not address plaintiffs’ second issue on appeal, which is whether the trial court erred by perceiving plaintiffs’ complaint as alleging a continuous wrong and thus concluding that amendme nt of the complaint would be
futile.

We reverse the trial court’s July 27, 2015 order granting defe ndants’ summary disposition, and remand the matter to the trial court for furth er proceedings. We do not retain jurisdiction.

/s/ Christopher M. Murray
/s/ Joel P. Hoekstra /s/ Jane M. Beckering