Dunmore v. Babaoff

• Decision Date: 05 May 1986
• Docket Number: Docket No. 79787
• Citation: 386 N.W.2d 154,149 Mich.App. 140
• Parties: Willie Bell DUNMORE, Plaintiff-Appellant, v. E. BABAOFF and Sinai Hospital, jointly and severally, Defendants-Appellees. 149 Mich.App. 140, 386 N.W.2d 154
• Court: Court of Appeal of Michigan — District of US

Page 154

386 N.W.2d 154

Willie Bell DUNMORE, Plaintiff-Appellant, v. E. BABAOFF and Sinai Hospital, jointly and severally,

Defendants-Appellees.

Docket No. 79787.

149 Mich.App. 140, 386 N.W.2d 154

Court of Appeals of Michigan.

Submitted Nov. 15, 1985.

Decided Dec. 9, 1985.

Released For Publication May 5, 1986.

[149 MICHAPP 142] William E. Wade, Detroit, for plaintiff-appellant.

Plunckett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by Robert G. Kamenec, Detroit, for defendant-appellee Babaoff.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. by Susan Healty Zitterman, Detroit, for defendant-appellee Sinai Hosp.

Before BEASLEY, P.J., and V.J. BRENNAN and CYNAR, JJ.

PER CURIAM.

Plaintiff filed a complaint in Wayne County Circuit Court on December 20, 1982, against defendants Dr. Babaoff and Sinai Hospital alleging medical malpractice based upon Dr. Babaoff's performing an abortion upon plaintiff without her consent. The abortion was performed at Sinai Hospital. Plaintiff's complaint also alleged that Dr. Babaoff had fraudulently concealed from her the fact that she was pregnant, that he had performed an abortion and that he had not performed a complete salpinectomy.

[149 MICHAPP 143] Following a hearing on July 20, 1984, defendants were granted summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C), as to plaintiff's fraudulent concealment claim and accelerated judgment pursuant to GCR 1963, 116.1(5), now MCR 2.116(C), with respect to plaintiff's allegations of medical malpractice based on a running of the applicable period of limitations. M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838. Plaintiff appeals as of right, claiming that the trial court erroneously granted defendants' motion for summary judgment.

On August 29, 1979, Dr. Babaoff performed surgery, a laparoscopy, a D & C (dilation and curettage) and tubal ligation, on plaintiff. During the course of the surgery, while plaintiff was under general anesthesia, Dr. Babaoff discovered that there was a possibility that plaintiff was pregnant. Medical records indicate that Dr. Babaoff performed a suction curettage, which brought forth some "natural grossly looking like embrial [sic ] tissue". Dr. Babaoff then continued with the scheduled procedures. Plaintiff was under general anesthesia at the time and was not informed of Dr. Babaoff's discovery or that he had performed an abortion.

Plaintiff's deposition testimony indicates that she visited with Dr. Babaoff for a post-operative checkup about three or four weeks after the August 29, 1979, procedure. Plaintiff admits that, during the checkup, Dr. Babaoff informed her that at the time of the procedure her uterus was slightly enlarged and that there was a possibility that she may have been pregnant at that time. Dr. Babaoff also informed plaintiff that he would not be able to verify the fact that she was pregnant until he received the lab reports. Plaintiff informed Dr. Babaoff that she did not believe that [149 MICHAPP 144] she was pregnant and made no further inquiries about the pregnancy. Dr. Babaoff apparently never informed the plaintiff of the findings of the lab reports.

Plaintiff took no further action relative to this case until May, 1982. At that time, plaintiff specifically requested a copy of her medical records from Sinai Hospital so that she could verify a statement made by another doctor concerning the presence of a tumor in her uterus. After reviewing the records, plaintiff realized that she had been pregnant at the time the August, 1979, procedure was performed. At that point, plaintiff took the records to an attorney who filed a complaint on her behalf against defendants alleging medical malpractice and fraudulent concealment of the fact that plaintiff was pregnant and that Dr. Babaoff had performed an abortion without plaintiff's consent.

The trial court found that defendants were entitled to accelerated judgment pursuant to GCR 1963, 116.1(5), now MCR 2.116(C)(7), because plaintiff's complaint was filed more than six months after plaintiff had discovered or should have discovered the existence of her claim and thus fell within the provisions of the applicable statute of limitations, MCL 600.5838; MSA 27A.5838. On appeal, plaintiff does not challenge the trial court's ruling on the medical malpractice claim.

The trial court also found that plaintiff had failed to demonstrate a genuine issue of material fact which would support a claim for fraudulent concealment. The court ruled that defendants were entitled to summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), on the fraudulent concealment claim because the undisputed facts established that Dr. Babaoff had advised plaintiff that she may have been pregnant and thus there was no affirmative act of concealment to support [149 MICHAPP 145] the claim. The court also found that plaintiff's proposed amendment to the complaint would be futile under the facts of this case and denied plaintiff's motion to amend.

Plaintiff argues that the trial court erred in ruling that defendants were entitled to summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), on the fraudulent concealment claim. Plaintiff asserts that there were numerous issues of fact relative to her fraudulent concealment claim. We disagree.

A motion for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), has the limited function of determining whether material issues of fact exist. Goldman v. Loubella Extendables, 91 Mich.App. 212, 217, 283 N.W.2d 695 (1979), lv. den. 407 Mich. 901 (1979). The motion should not be granted unless it is impossible for the opposing party to support his or her claim or defense because of some deficiency which cannot be overcome.

A claim of fraudulent concealment cannot postpone the running of the statutory period of limitation unless the fraud is manifested by an affirmative act or misrepresentation. Lumber Village, Inc. v. Siegler, 135 Mich.App. 685, 355 N.W.2d 654 (1984). In Buszek v. Harper Hospital, 116 Mich.App. 650, 654, 323 N.W.2d 330 (1982), a medical malpractice case involving fraudulent concealment, we quoted from DeHaan v. Winter, 258 Mich. 293, 296, 241 N.W. 923 (1932), as follows:

" 'Fraudulent concealment means employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action. The acts relied on must be of an affirmative character and...