Window of opportunity

Imagine the following line drawing cartoon. There is an open window. Think of it as a window of time during which a potential plaintiff has to sue their doctor. The patient, the plaintiff, wishes the window of time to remain open so the patient pushes the window frame up. On the other side of the window is the doctor who wants the window closed because if it is closed, the patient no longer has the opportunity to bring a lawsuit against them; therefore, the doctor is trying to push the window frame down. This window of opportunity is what is known as the statute of limitations, and it is during this statutorily defined period that a plaintiff must file suit against a defendant or be barred from doing so. We will come back to this analogy later.

In addition, most states require the plaintiff to file an affidavit or certificate of merit (AOM) at the initiation of a suit. What this means is that an expert witness has reviewed the facts and has determined that the malpractice claim is not frivolous and that the complaint has merit. It says nothing about how good or bad the claim is, just that it has enough merit to make the claim viable.

Now, suppose a patient files a negligence complaint against a doctor within the specified window of opportunity, but the certificate of merit is not filed until after the statutory period has expired. Can the suit go forward, or has the plaintiff lost their window of opportunity? That is what Ottgen v Katranji , Docket No. 163216 (Michigan Sup. Ct., July 14, 2023) is all about.

The plaintiff in this case underwent 2 thumb surgeries: the first on May 1, 2017 and the second on July 23, 2017. The statute of limitations for medical malpractice in Michigan is found in the Michigan Compiled Statutes section no. 600.5805(8) and states that the action must be filed within 2 years of the health care provider’s action, or inaction, that gave rise to the claim. There is also a tolling provision. Think of this as a stick that is propping the window open so it cannot close. There are many tolling provisions, such as when the patient is a minor and has until they reach the age of majority to file a claim on their behalf, as well as other tolling provisions, but the one that I want to talk about here, and get to in more detail later, is the discovery exception. What that refers to are situations when more than 2 years have gone by since the malpractice was committed, and the window of opportunity is now technically closed, but the plaintiff does not find out until after the window of opportunity has closed that they were injured in some way by the doctor’s treatment. In those circumstances, a malpractice claim can still be filed within 6 months of when the patient discovers or reasonably should have discovered that they were harmed. This is codified in Michigan Compiled Statutes section 600.5838(a)(2).

The plaintiff filed suit on April 11, 2019 within 2 years of the first surgery. On May 9, 2019, the defendants moved for summary judgment to dismiss the complaint because an (AOM) had not been filed with the complaint as required by MCL Sec. 600.2912(d)(2), and therefore, the 2-year period to file had now expired. At this point, we need to do a quick segue regarding the nature of an AOM.

In Michigan, an AOM is a document that must be signed by an expert witness who is either practicing or teaching in the same specialty as the defendant and must possess the same board certifications as the defendant. The expert witness who signs an AOM will provide an opinion as to what the standard of care is relative to the treatment rendered; the expert must state the manner in which the standard of care was breached, the manner in which the defendant should have met the standard of care, and finally, how the breach of the standard of care caused the injuries the plaintiff sustained.

The plaintiff responded to the defendant’s motion to dismiss, stating that the AOM was actually completed on January 30, 2019, but was not attached to the complaint because of a clerical error; they also asked for permission to amend the original complaint to include the AOM. The Trial Court ruled in the plaintiff’s favor. The defendants obviously appealed, and the Appellate Court reversed the finding of the original complaint to be defective because it lacked the AOM; hence, because the complaint was “not complete,” it could not now be filed with the AOM attached because it was now past the statutory 2-year period. Just as obviously, the plaintiff now appealed to the state Supreme Court.

The Supreme Court began its analysis by citing MCL 600.1901 and MCR 2.101(B); both of which note that a civil action commences on the filing of a complaint with the court within the statutorily required 2-year period. At that point, because the action has commenced, the statute of limitations is now tolled as the case works its way through the motion, discovery, deposition, and trial phases of every malpractice lawsuit, a process that often occurs over several years.

Addressing the defendant’s argument that the complaint was defective because an AOM is required, the court answered succinctly that yes, it is required, BUT it is not required to be filed with the complaint as it can be filed at a later date. Therefore, a case could be dismissed as defective because it did not meet the statute that requires the plaintiff to provide an AOM, but it would be dismissed on those grounds and not because it did not meet the temporal requirement of the statute of limitations. The court reversed the Appellate Court decision and allowed the case to continue.

Commentary

First, it is important to understand the statute of limitations is our friend. Courts have repeatedly held that there are numerous legal and practical reasons that doctors cannot be held on the hook forever. At some point, patients either need to file an action against them or give up the opportunity to do so. We want that period to start running; we want the window of opportunity to close; we would like whatever tolling provisions exist that we can control to be removed; we would like to be free from worrying forever about whether or not we will be sued for malpractice. At some point in time, this dread must cease to exist.

Various jurisdictions, states, and U.S. territories each set their statutes of limitations for medical malpractice; most of which range between 1 and 4 years. Some are known as occurrence jurisdictions, in which the period starts to run from the time the negligent act occurred. Other jurisdictions base the period on the time of discovery, which is the time the patient discovered or reasonably should have discovered that they have been injured. The occurrence jurisdictions generally favor the doctor, whereas the discovery jurisdictions generally favor the patient. In addition, many states have what is referred to as a statute of repose that denotes, regardless of the type of jurisdiction, after a certain period has elapsed, regardless of whether or not an injury has occurred or even if the injury had never been discovered, no malpractice case can be brought. It puts the matter to rest—permanently.

So, how do we get the clock to start running so our patient’s window of opportunity can close? Well, in an occurrence jurisdiction, the patient usually knows that they have been injured, so the clock starts to run on that date. However, in discovery jurisdictions, we do not want to hang around waiting until the patient discovers that we may have committed some type of negligence. My advice is to tell the patient, thereby starting the clock. No, you do not say to the patient, “I just screwed up” or “I made a mistake;” there are better ways to alert our patients that some shortcoming has occurred or that something is amiss.

If you are taking scout panoramic films 9-12 months into treatment to check for root resorption—hopefully, you are doing this—and you discover the beginnings of resorption, tell the patient about the “mild degree of root shrinkage” that you will continue to monitor the situation and that there are several options depending on a host of factors, and then document that you told the patient. Guess what? They have now “discovered” the “injury.” I hope you are all taking final radiographs for the same reason.

Or, suppose the patient’s oral hygiene was poor during treatment, and you saw white spot lesions, or worse, developing. Hopefully, you have been documenting the poor oral hygiene throughout the patient’s treatment, but did you inform the patient or parent of “the injury” even though it was minor at some point? More importantly, did you document it? If you made a chart entry along the lines of “…patient informed about X, Y, or Z,” you now have proof of when they “discovered” the injury. Once again, the clock starts to run (we have discussed the continuous treatment doctrine, another tolling provision, in prior columns. It stands for the proposition that the clock does not start to run so long as active treatment for the specific problem being treated is continuing). Whatever shortcomings, compromises in the treatment goals, limitations in the outcome, or iatrogenicities (even minor ones) exist, inform the patient in language that does not promote the concept that the sky has just fallen and document the discussion, and in that way, you will have mitigated the “discovery” issue as best you can.

This is important not only during treatment but particularly at the end of treatment. Maybe there are a few little dehiscences here or there. Maybe you did not get to Class I on 1 side. Maybe you were unable to close an extraction space fully. You name it; whatever the shortcoming is, alert the patient and document you did so; therefore, “discovery” has been achieved, and the clock can start to run.

Look, I have said this before: we do not hit a home run with every case we treat. We make huge improvements most of the time, but occasionally, there is a little something that is not to our liking. Most of the time, the patient does not have a clue, but guess who does? You got it, the general or pediatric dentist, another orthodontist, or some other specialist who the patient goes to see for whatever, who, as part of their examination, says to the patient, you know, you have blah, blah, blah. At this point, the patient freaks because they knew nothing about it; they get all upset, and the next thing you know, some lawyer has filed a malpractice complaint regarding the treatment you rendered, and the expert’s AOM attests to it. Now, everything might hinge on the amount of elapsed time between when our insightful colleague saw the patient and the last time you saw the patient. In an occurrence jurisdiction, maybe too much time has elapsed, the statute of limitations has expired, the window has closed, and you are safe. But if you are in a discovery jurisdiction, well, the patient just discovered that they suffered an injury, so the clock starts to run from that point unless, as noted previously, you have documented in the patient record that you notified the patient about X, Y, or Z on A, B, C date, and it is from that point that the clock would have started to run.

In 1964, The Rolling Stones released a song titled “Time Is on My Side,” and in 1992, Earth, Wind, and Fire released “Time Is on Your Side.” Regarding claims of dental malpractice, whether or not time is on your side or the patient’s side will depend on your state’s statute of limitations and whether you are practicing in an occurrence or a discovery jurisdiction. These 2 factors will determine when the clock starts to run and when the window of opportunity closes.

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