Blana v. Spezia
| Decision Date | 02 February 1987 |
| Docket Number | Docket No. 84589 |
| Citation | 155 Mich.App. 348,399 N.W.2d 511 |
| Parties | Eric BLANA and Gloria Blana, Plaintiffs-Appellants, v. Dr. Ronald SPEZIA, D.D.S., Defendant-Appellee. 155 Mich.App. 348, 399 N.W.2d 511 |
| Court | Court of Appeal of Michigan — District of US |
[155 MICHAPP 349] William R. Knight, Jr., Mt. Clemens, for plaintiffs-appellants.
Anthony B. Roshak, East Detroit, for defendant-appellee.
Before BEASLEY, P.J., and HOLBROOK and SULLIVAN, * JJ.
On January 24, 1985, plaintiffs, Eric Blana and Gloria Blana, filed suit against defendant dentist, Dr. Ronald Spezia, claiming that defendant had committed dental malpractice in treating plaintiff Eric Blana for periodontal (gum) disease. Defendant moved for disposition pursuant to MCR 2.116(C)(7), formerly GCR 1963, 116.1(5), claiming that plaintiffs had failed to file their cause of action within the applicable statute [155 MICHAPP 350] of limitations period provided in M.C.L. Sec. 600.5805; M.S.A. Sec. 27A.5805 and M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838. On March 4, 1985, the trial judge granted defendant's motion for summary disposition and dismissed plaintiffs' complaint. Plaintiffs appeal as of right.
We first note that the trial judge, in deciding whether to grant defendant's motion for summary disposition on March 4, 1985, properly applied the new Michigan Court Rules which took effect on March 1, 1985. MCR 2.116(G)(5), provides that in deciding a motion based on MCR 2.116(C)(7) a trial judge must consider the affidavits, pleadings, depositions, admissions and documentary evidence filed at the time the motion is considered. At the time the trial judge considered defendant's motion, plaintiffs had filed a complaint and an affidavit, as well as defendant's having filed an affidavit.
Plaintiffs' complaint and affidavit alleged that plaintiff Eric Blana had been informed by Dr. Gitlin, D.D.S., in June of 1981 that he suffered from peridontal disease that required gum surgery and the removal of five teeth. On July 2, 1981, Blana consulted with defendant for a second opinion. Defendant proposed mouth treatment that did not involve surgery, but involved pulling the gums from the teeth and the placement of a bridge in the mouth.
Defendant began treating Blana in July of 1981. Blana discontinued treatment on September 30, 1981, after the bridge was placed in his mouth. Subsequently, Blana allegedly did not treat or consult with a dentist until January 17, 1984, when he was treated by Dr. Dobrusin, D.D.S., for sudden and excruciating mouth pain. Dr. Dobrusin removed an abscessed tooth on that date. On November 23, 1984, Blana returned to Dr. Dobrusin for a full mouth examination. On that date, Dr. [155 MICHAPP 351] Dobrusin informed Blana, allegedly for the first time, that his periodontal disease had progressed significantly since 1981 and proper treatment required that all but six of Blana's teeth and the bridge placed in his mouth by defendant be removed.
Allegedly, Dr. Dobrusin refused to comment on whether defendant had improperly treated Blana's gum disease. However, plaintiff consulted an attorney in December, 1984, who suggested that he might have a malpractice claim. As previously indicated, plaintiffs filed suit in this matter on January 24, 1985.
On appeal, plaintiffs argue that the trial judge erred in granting defendant's motion for summary disposition because a material factual dispute existed as to the date that plaintiffs discovered the alleged malpractice. The applicable statute of limitations, M.C.L. Sec. 600.5838(2); M.S.A. Sec. 27A.5838(2), provides:
(Emphasis added.)
Plaintiffs do not dispute that they filed their complaint more than two years after the last date of treatment by defendant on September 30, 1981. [155 MICHAPP 352] Thus, it is clear that plaintiffs failed to assert their claim within the two-year statutory period provided in M.C.L. Sec. 600.5805; M.S.A. Sec. 27A.5805. However, plaintiffs allege that they filed their complaint within six months after the time they allegedly discovered or should have discovered, their possible malpractice claim in November, 1984. The trial judge found that plaintiffs had failed to allege sufficient facts to sustain their burden of proving that Blana, as a result of physical discomfort, appearance, condition or otherwise, neither discovered nor should have discovered the existence of the malpractice claim six months prior to filing their complaint.
In addressing this issue, we must first determine when a trial judge can properly grant summary disposition under the new Michigan Court Rules based on the running of the statute of limitations period in a medical malpractice action. This Court, in applying the former General Court Rules, held that the granting of accelerated judgment under GCR 1963, 116.1(5) is improper when a material factual dispute exists regarding the date of discovery of the alleged malpractice. 1 This rule of submitting the statutory "date of discovery" issue to the jury if there is any material factual dispute was adopted by this Court pursuant to Winfrey v. Farhat, 2 where, prior to the enactment of M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838, the Supreme Court applied a judicially constructed "discovery" rule. This former, judicially constructed discovery rule provided that the statute of limitations in malpractice cases did not begin to run until the date [155 MICHAPP 353] the plaintiff should have discovered the wrongful act. 3
It is not clear whether the Michigan Supreme Court would have adopted the rule requiring any material factual disputes to be submitted to the jury for purposes of the statutory discovery rule provided in M.C.L. Sec. 600.5838(2); M.S.A. Sec. 27A.5838(2). The statute expressly places on plaintiff the burden of proving that the plaintiff did not discover, or should not have discovered, the existence of a malpractice claim over six months prior to filing suit. Furthermore, allowing the jury to decide a preliminary statute of limitations issue expressly created by the Legislature in order to preclude the filing of certain medical malpractice claims creates a serious risk of nullifying the Legislature's intent in passing the statute of limitations. A jury presented with evidence of a seriously injured plaintiff may be prone to disregard the facts and find that the plaintiff should have discovered his claim only within six months of filing his complaint in order to provide the plaintiff an award of damages.
The risk presented in this situation is analogous to the risk that exists in allowing a jury to decide preliminary questions concerning the admissibility of evidence at trial. A jury is deemed unable to hear certain evidence, such as an illegally obtained confession or hearsay evidence, decided that the evidence is inadmissible, and then fairly decide the main issue at trial, having heard the inadmissible evidence. Therefore, the preliminary question concerning the admissibility of material factual disputes, is left solely to the trial judge 4
Although this Court, as noted above, has held that under the former General Court Rules any [155 MICHAPP 354] material dispute of fact concerning a plaintiff's discovery of the existence of a malpractice claim requires the issue to be submitted to the jury, we believe that under the new Michigan Court Rules this rule should be altered to assure a fair adjudication of this preliminary statute of limitations issue. GCR 1963, 116.3, merely provided that a party may submit affidavits or other evidence in supporting or opposing a motion for accelerated judgment. The former court rule did not require a trial...
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