KENNETH BROWN PHD V DR KAREN MILNER
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
KENNETH BROWN, PH. D. and KATHERINE
ANNE THOMPSON,
UNPUBLISHED
June 11, 2009
Plaintiffs-Appellants,
v
No. 285574
Washtenaw Circuit Court
LC No. 06-000142-NM
DR. KAREN MILNER,
Defendant,
and
DR. DAN ANDREWS and UNIVERSITY
HEALTH SERVICES,
Defendants-Appellees.
Before: Fort Hood, P.J., and Cavanagh and K. F. Kelly, JJ.
PER CURIAM.
Plaintiffs appeal by right an order denying leave to file an amended complaint and
dismissing this medical malpractice action. We affirm.
The salient facts of this matter were set forth in our previous opinion, Brown v Milner,
unpublished opinion per curiam of the Court of Appeals, issued July 3, 2007 (Docket No.
274490), and need not be repeated at length here. In that first appeal, plaintiffs claimed that
summary dismissal of their medical malpractice case against Dr. Dan Andrews and University
Health Services on statute of limitation grounds was erroneous. In their motion for relief from
judgment filed in the trial court, plaintiffs had claimed that plaintiff Brown was provided
negligent treatment from these defendants within two years of the filing of their notice of intent
and that plaintiffs’ claims were discovered within six months of the filing of the action. At the
hearing on the motion, plaintiffs had requested to amend their complaint to include these
allegations. The request was denied as futile, and the case was dismissed. Because leave to
amend is freely given and we could not determine on the record before us why leave to amend
was denied as futile, we reversed the trial court’s denial of plaintiffs’ motion for relief from
judgment and remanded the matter to the trial court for reconsideration of plaintiffs’ request to
amend their complaint.
-1-
Thereafter, plaintiffs filed their first amended complaint in the trial court. Defendants
moved to strike the complaint, arguing first that the proposed amended complaint failed to state
claims that were not barred by the statute of limitations. In particular, defendants argued,
plaintiffs filed their notice of intent on August 8, 2005; thus, any claims based on alleged
negligent treatment that accrued before August 8, 2003, were barred. Here, plaintiffs’ alleged
misdiagnosis claim accrued in 1996, when Dr. Andrews diagnosed Brown with depression.
Plaintiffs’ claim based on the allegedly negligent treatment of prescribing antidepressant
medication accrued in 2000. Because Dr. Andrews adhered to the original diagnosis and
treatment plan, i.e., there were no new, distinct negligent acts or omissions, and Michigan does
not recognize a “continuing-wrong” rule, the possible accrual dates remained the same and the
claims were barred. See McKiney v Clayman, 237 Mich App 198, 203; 602 NW2d 612 (1999).
Second, defendants argued, plaintiffs’ claims were barred by the wrongful conduct rule because
their alleged injuries resulted from Brown’s criminal convictions, not any purported malpractice.
Third, defendants argued, plaintiffs should have discovered the possible cause of action more
than six months before the notice of intent was sent; thus, the discovery rule exception to the
statute of limitations did not apply.
Plaintiffs responded to defendants’ motion to strike, arguing first that the case was timely
filed because Brown, who suffered from bipolar disorder, did not discover the malpractice until
February 9, 2005, within six months of the filing of this case. Second, the case was timely filed
because Dr. Andrews continued to misdiagnose and mistreat Brown’s condition for almost ten
years despite Brown’s ever-changing symptoms and conditions. And, third, even if the wrongful
conduct rule applied to some of plaintiffs’ damages, it did not apply to all of the damages.
Following oral arguments on the motion, the trial court denied leave to file an amended
complaint. Citing McKiney, supra, the trial court held that the proposed amended complaint
failed to include new, distinct negligent acts or omissions after the original diagnosis of
depression in 1996, and the decision to treat Brown with antidepressant medication in 2000.
That is, all treatments related to the original diagnosis in 1996 of depression. The treatment
Brown received from defendants in 2003 and 2004 did not constitute new, distinct acts or
omissions—the visits all related to the original diagnosis and treatment with antidepressants.
Thus, amendment would be futile because the claims were barred by the statute of limitations.
Further, the trial court held, amendment would be futile because the claims were barred by the
wrongful conduct rule. Brown’s deposition testimony clearly illustrated that his claimed
damages proximately resulted from his arrest and conviction on a criminal sexual conduct
charge, not medical malpractice. Accordingly, an order denying leave to file an amended
complaint and dismissing the action was entered. This appeal followed.
Plaintiffs argue that the trial court erred when it denied leave to file an amended
complaint because their medical malpractice claims were not barred by the statute of limitations.
We disagree. An order denying leave to amend a complaint is reviewed for an abuse of
discretion. Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997). An abuse of
discretion occurs when the decision results in an outcome falling outside the principled range of
outcomes. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). Although leave to
amend should be freely given, MCR 2.118(A)(2), leave should be denied where amendment
would be futile. Miller v Chapman Contracting, 477 Mich 102, 106; 730 NW2d 462 (2007).
-2-
First, plaintiffs argue that their proposed amended complaint stated timely claims under
the six-month discovery rule, MCL 600.5838a(2). Under the discovery rule provision, a plaintiff
must commence an action “within 6 months after the plaintiff discovers or should have
discovered the existence of the claim, whichever is later.” MCL 600.5838a(2). And, “the
burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or
otherwise, 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 is on the plaintiff.”
Id.
Here, as defendants argue, plaintiffs did not set forth any allegations in their amended
complaint that support the application of the discovery rule and, thus, the trial court did not
address this claim. We agree. In their proposed amended complaint, plaintiffs failed to address
the issue that Brown “neither discovered nor should have discovered the existence of the claim at
least 6 months before the expiration of the period otherwise applicable . . . .” MCL
600.5838a(2). Although plaintiffs set forth the cursory claim that Brown was diagnosed with a
bipolar condition on February 9, 2005, the amended complaint does not set forth any assertions
to support a claim that Brown neither discovered nor should have discovered the existence of the
purported claim before that time. See Solowy v Oakwood Hosp Corp, 454 Mich 214, 221-222;
561 NW2d 843 (1997).
In their proposed amended complaint, plaintiffs allege that Brown began seeing
defendant Dr. Andrews, a family practice physician, at defendant University Health Services in
1995. In about 1996, Brown began speaking to Dr. Andrews about his previously diagnosed
depression condition and Dr. Andrews began prescribing antidepressant medication for the
condition. In 2001, Brown committed a criminal sexual conduct crime. Between 2003 and
September 8, 2004, Brown possibly saw Dr. Andrews about 11 times, for a variety of medical
complaints. In November of 2004, Brown committed a second criminal sexual conduct crime.
Plaintiffs claimed that as a result of defendants’ negligence, Brown changed jobs multiple times,
failed in multiple business ventures, declared bankruptcy three times, and was twice divorced. In
light of these facts and plaintiffs’ failure to set forth allegations in their amended complaint that
support the application of the discovery rule, we reject plaintiffs’ argument on appeal that the
six-month discovery rule was applicable to this claim.
Second, plaintiffs argue that the cause of action set forth in their proposed amended
complaint was not barred by the two-year statute of limitation period, MCL 600.5805(6). After
de novo review, we disagree. See Colbert v Conybeare Law Office, 239 Mich App 608, 613614; 609 NW2d 208 (2000).
MCL 600.5838a(1) provides that a medical malpractice claim “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.” Thus, we turn to the malpractice
allegations in plaintiffs’ complaint. On April 23, 1996, Brown began speaking to Dr. Andrews
about his previously diagnosed depression condition and Dr. Andrews began prescribing
antidepressant medication for the condition. Plaintiffs averred that “[o]ver the ensuing years, Dr.
Andrews switched [Brown] on and off different antidepressant medications at least six times.”
And, “[d]uring this entire time, Dr. Andrews still never formally tested nor fully evaluated
[Brown] despite all the changes in medication, nor did he refer [Brown] to a psychologist or to a
psychiatrist.” Plaintiffs further averred that “[o]n each one of these visits between 1995 and
-3-
September 2004, including specifically each and every visit which followed August 8, 2003,
[Brown] exhibited signs and symptoms consistent with Bipolar II disorder.” Essentially,
plaintiffs averred that on each and every visit, Dr. Andrews should have tested, evaluated, and/or
treated Brown for bipolar disorder or referred him to a specialist.
It appears that plaintiffs are contending that each time Brown saw Dr. Andrews
constituted an accrual date in support of a cause of action, i.e., a new act of medical malpractice.
But, as the trial court noted, ongoing omissions in diagnosis do not constitute separate acts or
omissions that represent new accrual dates. See McKiney, supra at 203-207. Dr. Andrews had
continually treated Brown for depression from 1996 through 2004. That is, Dr. Andrews merely
adhered to his original diagnosis of depression and proceeded to treat that condition. In their
proposed amended complaint, plaintiffs did not “allege any new, distinct negligent acts or
omissions” by defendants. Thus, the trial court properly concluded that amendment of plaintiffs’
complaint would be futile because the claims were barred by the statute of limitations.
In light of our conclusion, we need not address the issue whether the trial court erred in
holding that amendment of plaintiffs’ complaint would be futile as a result of the application of
the wrongful conduct rule. Plaintiffs’ complaint was properly dismissed as time-barred.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
