DORA TALBOT V IRWIN SMALL DDSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
December 1, 1998
Oakland Circuit Court
LC No. 95-504991 NH
IRWIN SMALL, D.D.S.,
Before: Sawyer, P.J., and Wahls and Hoekstra, JJ.
Plaintiff Dora Talbot appeals of right from the circuit court order granting the motion for
summary disposition filed by defendant Irwin Small, D.D.S. We affirm. This appeal is being decided
without oral argument pursuant to MCR 7.214(E).
On August 19, 1992 defendant performed a dental implant procedure on plaintiff. On
September 26, 1995 plaintiff filed a complaint alleging that defendant committed malpractice by injuring
a nerve during the procedure, thereby causing permanent numbness to her lip and chin. Plaintiff alleged
that defendant fraudulently assured her that the numbness would disappear over time. Defendant
moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that the claim had not been filed
within two years after it accrued, as required by MCL 600.5805(4); MSA 27A.5805(4), and that the
six-month discovery rule provided for in MCL 600.5838a(2); MSA 27A.5838(1)(2) was inapplicable
because the evidence showed that plaintiff was aware of a possible cause of action almost immediately
after the surgery.
The trial court granted defendant’s motion, finding that because the evidence showed that
plaintiff discovered the existence of her claim within the limitations period, the original limitations period
was not extended by the six-month discovery rule. This Court reviews de novo a trial court’s decision
on a motion for summary disposition. Smith v YMCA of Benton Harbor/St. Joseph, 216 Mich App
552, 554; 550 NW2d 262 (1996).
Plaintiff argues that she did not discover nor could she have discovered her claim within the
applicable two-year limitations period because defendant and his associate fraudulently told her that the
numbness would disappear over time. While she was aware of the numbness immediately after the
surgery, she was not aware of any wrongdoing because defendant and his associate fraudulently allayed
her suspicions. See, e.g., Leary v Rupp, 89 Mich App 145, 149; 280 NW2d 466 (1979). Plaintiff
contends that she could not have discovered her claim until she spoke with her attorney because she
had been misled.
We affirm the trial court’s ruling. Once a plaintiff is aware of an injury and the possible cause of
that injury, the plaintiff is equipped with the knowledge necessary to diligently pursue a claim for
malpractice. Solowy v Oakwood Hosp Corp, 454 Mich 214, 221-223; 561 NW2d 843 (1997). The
general two-year limitations period for malpractice actions, MCL 600.5805(4); MSA 27A.5805(4), is
subject to the six-month discovery exception. MCL 600.5838a(2); MSA 27A.5838(1)(2). The six
month rule cannot hold a cause of action in abeyance indefinitely. Turner v Mercy Hospitals & Health
Services of Detroit, 210 Mich App 345, 353; 533 NW2d 365 (1995). A claimant must take diligent
steps to discover a cause of action and cannot simply wait for others to inform him or her of the
existence of a cause of action. Id. Plaintiff acknowledged that she felt the numbness immediately after
the surgery, and that at that time she believed that defendant might have done something wrong. At that
time, a point well within the two-year period, plaintiff knew or should have known of a possible cause of
action. See Solowy, supra.
Plaintiff’s reliance on the fraudulent concealment doctrine, MCL 600.5855; MSA 27A.5855, is
misplaced. Defendant’s associate was not named a party defendant. Moreover, the record shows that
defendant told plaintiff that she should wait six months to one year after surgery to determine if the
numbness would disappear. Defendant did not conceal the fact that numbness heals over time. The
numbness did not heal after this period; therefore, at that point at the latest, plaintiff was or should have
been aware of a possible cause of action. Because this point fell within the original two-year limitations
period, the six-month discovery rule did not apply in this case.
/s/ David H. Sawyer
/s/ Myron H. Wahls
/s/ Joel P. Hoekstra