D.E. HOLBROOK, JR., P.J.
Plaintiff appeals as of right from an order of the trial court granting defendant's motion for accelerated judgment on
On February 18, 1976, the plaintiff received a transfusion of blood platelets while an in-patient at the University Hospital in Ann Arbor. Later the same day, one of the physicians treating plaintiff advised her that at least one of the units of platelets was diseased with serum hepatitis and that she would likely contract hepatitis.
Plaintiff was readmitted to University Hospital on July 23, 1976, and discharged August 2, 1976, when she was diagnosed as having severe serum hepatitis, which later developed into chronic hepatitis.
Plaintiff alleges that defendant furnished all units of platelets to University Hospital which were subsequently administered to her. The defendant failed to discover the donor's history of serum hepatitis because the donor's name had been misspelled. The misspelled name cross-matched with a donor who had no history of hepatitis. After finding their error, defendant informed University Hospital.
On October 9, 1979, plaintiff filed her complaint against defendant. Defendant countered with a motion for accelerated judgment on the ground that plaintiff's claim was barred by the statute of limitations. After consideration of the facts alleged in plaintiff's complaint, briefs submitted on behalf of both parties and oral argument, the circuit court granted defendant's motion. In so ruling, the court found that, even if the medical malpractice statute applied, as plaintiff contended, plaintiff should have discovered the cause of action sooner and her claim was now barred by the statute of limitations. We agree.
The sole issue on appeal is whether the trial
MCL 600.5805(7); MSA 27A.5805(7)
The date on which the three-year period commenced to run remains to be determined. A cause of action arising out of tortious injury to a person accrues when all the elements of the cause of action have occurred and can be alleged in a proper complaint. These elements are:
1. The existence of a legal duty by defendant toward plaintiff;
2. the breach of such duty;
3. the proximate causal relation between the breach of such duty and an injury to the plaintiff; and
4. the plaintiff must have suffered damages.
Connelly v Paul Ruddy's Equipment Repair & Service Co, 388 Mich. 146, 150; 200 N.W.2d 70 (1972), William C Reichenbach Co v Michigan, 94 Mich.App. 323; 288 N.W.2d 622 (1979).
We find that the three-year statute of limitations
Plaintiff claims that her cause of action did not accrue until she knew of defendant's involvement with the blood platelets. The accrual date of plaintiff's cause of action is not delayed until she becomes aware of the identity of the alleged tortfeasor that might ultimately be liable for her injuries. Thomas v Ferndale Laboratories, Inc, 97 Mich.App. 718; 296 N.W.2d 160 (1980).
A malpractice claim is governed by MCL 600.5805(3); MSA 27A.5805(3)
Since treatment by the defendant was discontinued before August 2, 1976, it is evident that the plaintiff exceeded the two-year limitation. The question now becomes when, by the exercise of reasonable diligence, should the plaintiff have discovered the existence of a claim.
In the instant case, as early as February 18, 1976, the plaintiff knew she had received blood diseased with hepatitis. By August 2, 1976, plaintiff knew she had contracted hepatitis. The transfusion of diseased blood gave plaintiff good reason to believe the act was improper. Thus under the "time of discovery" rule, the claim is barred.
Plaintiff also argues that the motion for accelerated judgment was improperly granted because factual questions existed as to whether she could have discovered the identity and involvement of the defendants sooner. Accelerated judgment is improper where material factual disputes exist regarding discovery of the alleged malpractice. Jackson v Vincent, 97 Mich.App. 568, 572; 296 N.W.2d 104 (1980). However, the "time of discovery" rule relates to the discovery of the asserted malpractice and not the discovery of defendant's identity or involvement.
The trial court therefore did not err in granting defendant's motion for accelerated judgment.
Affirmed. Costs to appellee.