Coleman v. Dowd

• Decision Date: 06 November 1990
• Docket Number: Docket No. 117726
• Citation: 185 Mich.App. 662,462 N.W.2d 809
• Parties: Helen COLEMAN and Eddie Coleman, Plaintiffs-Appellants, v. Clinton DOWD, M.D., and G. Lecea, M.D., Defendants-Appellees. 185 Mich.App. 662, 462 N.W.2d 809
• Court: Court of Appeal of Michigan — District of US

Page 809

462 N.W.2d 809

Helen COLEMAN and Eddie Coleman, Plaintiffs-Appellants, v. Clinton DOWD, M.D., and G. Lecea, M.D. Defendants-Appellees.

Docket No. 117726.

185 Mich.App. 662, 462 N.W.2d 809

Court of Appeals of Michigan.

Submitted April 12, 1990.

Decided Oct. 2, 1990.

Released for Publication Nov. 6, 1990.

[185 MICHAPP 663] Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Richard E. Shaw, Detroit, for plaintiffs-appellants.

Portnoy, Leader, Pidgeon & Roth, P.C. by Robert P. Roth and Marc S. Berlin, Bloomfield Hills, for defendant-appellee G. Lecea, M.D.

Cline, Cline & Griffin by Glenn Michael Simmington, Flint, for defendant-appellee Clinton Dowd, M.D.

Before BRENNAN, P.J., and MAHER and NEFF, JJ.

PER CURIAM.

Plaintiffs appeal as of right from separate orders of the circuit court granting summary disposition to defendants. Defendant Dowd's motion for summary disposition was based on MCR 2.116(C)(7). Defendant Lecea's motions for summary disposition were based on [185 MICHAPP 664] MCR 2.116(C)(7) and (8). We reverse and remand.

I

This is a medical malpractice case. As a result of defendants' alleged failure to ligate plaintiff Helen Coleman's right fallopian tube during a tubal ligation, she became pregnant. In her deposition testimony, plaintiff acknowledged that, immediately after she learned that she was pregnant, she suspected that defendants may have improperly performed the tubal ligation. In her own words, plaintiff stated that she felt that "somebody had screwed up." However, after discussing her pregnancy with her physician, she learned that it is possible to become pregnant even after a properly performed tubal ligation.

After plaintiff delivered her child by Caesarean section, she learned that her right fallopian tube had reportedly never been ligated. She thereafter brought suit against defendant Dowd, the physician who performed the tubal ligation, and against defendant Lecea, the resident who assisted during the tubal ligation.

II Statute of Limitations

Plaintiffs contend that the trial court erred in granting summary disposition to defendants pursuant to MCR 2.116(C)(7) on the basis of the statute of limitations. We agree.

It is undisputed that plaintiffs brought suit well beyond the two-year period of limitations contained in M.C.L. Sec. 600.5805(4); M.S.A. Sec. 27A.5805(4) for [185 MICHAPP 665] filing a malpractice action. What is disputed is whether, pursuant to M.C.L. Sec. 600.5838(2); M.S.A. Sec. 27A.5838(2), plaintiffs filed suit within six months after Helen Coleman discovered or should have discovered the existence of the claim.

In reviewing a motion for summary disposition based on MCR 2.116(C)(7), this Court accepts as true all of the plaintiff's well-pled factual allegations and construes them most favorably to the plaintiff. Wakefield v. Hills, 173 Mich.App. 215, 220, 433 N.W.2d 410 (1988), lv. den. 433 Mich. 857 (1989).

Where, as here, the plaintiff has requested a jury trial, summary disposition pursuant to MCR 2.116(C)(7) should not be granted if there are factual disputes regarding when discovery occurred or reasonably should have occurred. Wakefield, supra. In such a situation, the discovery issue is generally to be decided by the jury. Moss v. Pacquing, 183 Mich.App. 574, 580, 455 N.W.2d 339 (1990); Wakefield, supra. However, in Weisburg v. Lee, 161 Mich.App. 443, 447-448, 411 N.W.2d 728 (1987), this Court stated:

A plaintiff is held to have discovered the existence of a malpractice claim when: (1) the act or omission of the defendant becomes known and (2) the plaintiff has reason to believe that medical treatment was improper or was performed in an improper manner. Kelly v. Richmond, 156 MichApp 699, 402 NW2d 73 (1986); Juravle v. Ozdagler, 149 MichApp 148; 385 NW2d 627 (1985). The plaintiff has the burden of proving that discovery was not within two years of the date of the last treatment. MCL 600.5838(2); MSA 27A.5838(2).

Once it is shown that the two-pronged test mentioned above has been met, the court may conclude as a matter of law that plaintiff discovered or should have discovered the asserted malpractice and grant defendants' motion for summary disposition. Blana v Spezia; 155 MichApp 348; 399 NW2d [185 MICHAPP 666] 511 (1986); Lefever v American Red Cross, 108 MichApp 69; 310 NW2d 278 (1981). The trial court's findings will not be reversed unless clearly erroneous. Blana, supra, [155 Mich.App.] p 354 .

While we believe that the discovery issue is generally to be determined by the jury, under the unique facts of this case and because of the strong public policy of discouraging potentially frivolous litigation, we believe that the discovery issue in this case must be determined as a matter of law. Here, it was not until after plaintiff's Caesarean section that she knew or had any reason to believe with any degree of certainty that the failure of the tubal ligation was due to the negligent performance by the physicians and not due to any natural cause. While plaintiff may have had suspicions of negligence, there was no way to confirm her suspicions, without posing a risk to the mother or the fetus, until she delivered her child or miscarried. Therefore, discovery of the claim could not have occurred until one of those events occurred.

To require plaintiff to bring suit before she could reasonably be expected to know whether there was a valid basis for suing, i.e., before delivery or miscarriage, would place plaintiff in the untenable situation of choosing between either giving up her right to sue or endangering her health or that of her fetus and would encourage potentially frivolous and unnecessary litigation, with its attendant costs, both financial and emotional. Accordingly, we conclude that, under the unique set of facts presented here, the trial court clearly erred in granting summary disposition in favor of defendants on the basis of the statute of limitations, and we direct that summary disposition be granted in favor of plaintiffs as to this issue.

[185 MICHAPP 667]

III Governmental Immunity

Plaintiffs also contend that the trial court erred in granting summary disposition to defendant Lecea on the basis of governmental immunity because his failure to ligate the right fallopian tube was a ministerial act. Lecea moved for, and the trial court granted, summary disposition on the basis that, at the time of the tubal ligation, Lecea was engaged in a discretionary activity.

In Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567, 592, 634-635, 363 N.W.2d 641 (1984), reh. den. 421 Mich. 1202 (1985), our Supreme Court discussed discretionary versus ministerial acts as follows:

"Discretionary-decisional" acts are those which involve significant decision-making that entails personal deliberation, decision, and judgment. "Ministerial-operational" acts involve the execution or implementation of a decision and entail only minor decision-making.

An individual who...