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160291-2 - Estate of Kelly Bowman v St. John Hosp & Med Center

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Vernon Bowman, Individually and as Personal Representative of the Estate of Kelly M. Bowman,

 

Mark Bendure

 

Plaintiff-Appellant,

 

v

(Appeal from Ct of Appeals)

 

 

(Macomb – Caretti, R.)

 

St. John Hospital and Medical Center, and Ascension Medical Group Michigan, d/b/a Romeo Plan Diagnostic Center and Tushar S. Parikh, M.D.,

 

Renee Pries

Joanne Geha Swanson

 

Defendants-Appellees.

 
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​Appellant's Brief on Appeal
 
 
 
 
 
 

Summary

Kelly Bowman had a lump in her right breast.  On June 12, 2013, defendant Dr. Tushar Parikh, a radiologist, reviewed a mammogram and concluded that the lump was benign.  In April 2015, Bowman had another mammogram, followed by a biopsy.  The April 2015 biopsy confirmed that the lump was cancerous. Bowman had a bilateral mastectomy on May 18, 2015, and learned that her cancer was metastatic.  A biopsy in July 2016 revealed further metastasis.  Bowman began treating with another doctor, who told her, in August 2016, that her 2013 mammogram should have been reported as suspicious for cancer.  On December 10, 2016, Bowman’s attorney mailed a notice of intent to sue the defendants.  Bowman and her husband filed a medical malpractice lawsuit against Dr. Parikh and other defendants on June 12, 2017.  The defendants moved for summary disposition under MCR 2.116(C)(7), arguing that the plaintiffs failed to file the complaint (or serve the notice of intent) before the statute of limitations expired.  The only issue was whether the plaintiffs timely initiated the action under the discovery rule, MCL 600.5838a(2).  The defendants argued that Bowman should have discovered her claim by April 2015, when her cancer was diagnosed, or in May 2015 at the latest, when she learned that she had metastatic cancer.  The plaintiffs argued that Bowman did not know that Dr. Parikh misinterpreted the 2013 mammogram until the other doctor told her in August 2016.  The trial court denied the motions for summary disposition.  The Court of Appeals, in a 2-1 unpublished opinion, reversed, holding that the defendants were entitled to summary disposition.  The Supreme Court has granted leave to appeal to address:  (1) whether this Court’s decision in Solowy v Oakwood Hosp Corp, 454 Mich 214 (1997), adopted the correct standard for application of the six-month discovery rule set forth in MCL 600.5838a(2); (2) if not, what standard the Court should adopt; and (3) whether the plaintiff in this case timely served her notice of intent and filed her complaint under MCL 600.5838a(2).​