Statute of limitations when there is a "continuing wrong"

One of the least discussed errors of recent Michigan jurisdprudence has been a deliberate confusion and rejection of the concept of a "continuing wrong".  Whether the claim is for a trespass on someone else's property, or  for a professional's continuing malpractice, there are occasions when an error occurs not just on the first day of the wrong--but also on subsequent days.  The so-called Engler Majority turned Michigan jurisprudence on its ear in the 2005 Garg case by deciding that the statute of limitations begins to run the day the first of these continuing errors is made:  a patient litigant who did not run to the courthouse steps is punished for his attempt to resolve matters without suit.

Examples of "continuing trespass" or "continuing negligence" are simple:  a neighbor encroaches on your property on a regular basis, either on foot, with a driveway or a structure, or with water run-off, for example.  A doctor examines his patient several times over the course of years of treatment, and mistakenly continues to treat a cancerous growth as benign, failing to adequately diagnose it.  A lawyer advises his client during successive appointments not to spend the money to pursue a trespass claim until the "continuing wrong" has achieved economic viability. Often, the victim of the wrong is pursuing out-of-court relief in the form of a negotiated resolution.  The Engler Majority's rejection of the "continuing wrong" doctrine reversed existing Michigan law and granted immunity to a wrongdoer for recent transgressions, simply because they weren't the first mistake.  Most people would disagree with the idea that a repeated error should be protected where an isolated mistake is not.

Some of the impetus for this decision came from confusion and poor advocacy--and a change in the statute of limitations.  Historically, Michigan allowed patients and clients to delay a malpractice suit until the end of a physician-patient or attorney-client relationship.  The client or patient's cause of action did not accrue, and the statute of limitations did not begin to run until the last day of the relationship.  As part of "tort reform," the legislature elected to begin the running of medical malpractice claims on the date of the alleged error--rather than at the end of the physician-patient relationship--and when continuing-mistake cases arose in that context, they were not thoroughly investigated and analyzed.

Thus, for example, in cases like McKiney v. Clayman, the appellate court rejected a malpractice case brought by a patient against his doctor, after the doctor mis-diagnosed and mis-treated cancer of the tongue for five years.  The case was brought well within two years of negligent treatments by the doctor (and well within two years of the proper diagnosis), but the court clung to a dichotomous analysis that seemed to be balancing only two options:  suit within two years of the end of the relationship or within two years of the initiation of the wrong treatment.  It stressed a factual falsehood in rejecting a "continuing wrong" analysis:  "[the patient] does not allege any new, distinct negligent acts or omissions...but merely adhere[nce] to [the doctor's] original misdiagnosis and treatment determination."  In fact, the patient alleged that this continued adherence to an erroneous diagnosis was a new, distinct, negligent act, each time it occurred.  Most reasonable people would agree.

Privately any group of doctors, professionals or scientists would acknowledge that unthinkingly continuing on any errant course, without proper re-evaluation, is negligence.  If there was, in fact, a wrong--a mistake--three years ago, it continues to be negligent to repeat that wrong on successive occasions.  If the professional had enough information on the first visit to render his "treatment course" negligent on the first visit, it is at least arguably negligent on the fifth and twenty-fifth visit, as well.  (Of course, the recoverable damages that flow from the subsequent acts of negligence may be diminished--particularly in medicine--since the cat may have left the bag [the disease may have metastasized, for example] before the negligent acts that remain actionable under the statute of limitations.)

Unfortunately, this initial mistaken claim (that maintaining a negligent course does not constitute negligence)--which was understood to be an error and rejected initially by other courts who examined the record for subsequent negligence--has continued to be cited as confirmation of the rejection of a continuing wrong cause of action--as recently as the decision in Mitchell v. Policherla, a 2005 case involving a consecutively mis-diagnosed breast lump.  When, in 2005, the Engler Majority pounced on the defense argument to reverse Michigan law and eliminate liability for "continuing wrongs" three Justices dissented.  They recognized that there was no sound basis in law or policy to treat a continuing wrong differently than an isolated mistake.  They would have maintained Michigan law as it was for half a century, and in accordance with virtually every other jurisdiction in the country.

In short, a defense-oriented group of judges has used a mistaken analysis, by accretion, to eliminate legitimate rights and to protect (by definition) continuing wrong-doers, from liability for their mis-deeds.  Hopefully, with a change in the composition of the Supreme Court in Michigan, we will return to the company of the host of states who continue to recognize that legitimate rights and claims should not be trampled, simply because the wrong-doer has continued on his wrongful course for several years.