Gore v. Rains & Block
| Decision Date | 17 June 1991 |
| Docket Number | Docket No. 114744 |
| Citation | 473 N.W.2d 813,189 Mich.App. 729 |
| Parties | Mark GORE, Plaintiff-Cross-Appellee-Cross-Appellant, and Virginia Gore, Plaintiff-Appellant-Cross-Appellee-Cross-Appellant, v. RAINS & BLOCK, Lowry A. Rains, Norman L. Block and Allan R. Gurvitz, Defendants-Appellees-Cross- Appellants-Cross-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Louis Prigioniero and Mark D. Shoup, Detroit, for plaintiff-cross-appellee-cross-appellant.
Collins, Einhorn & Farrell, P.C. by Michael J. Sullivan and Noreen L. Slank, Southfield, for defendants-appellees-cross-appellants-cross-appellees.
Before J.H. GILLIS, P.J., and MICHAEL J. KELLY and NEFF, JJ.
Plaintiffs, Mark and Virginia Gore, sued the law firm of Rains & Block and certain partners thereof for legal malpractice for failing to file a timely medical malpractice claim on their behalf. Following a jury trial, Mark Gore was awarded $60,000 for the underlying medical malpractice claim and $60,000 for mental anguish arising out of the legal malpractice claim, for a total of $120,000 in damages. Virginia Gore was awarded $30,000. Defendants thereafter moved for a new trial, remittitur, and a judgment notwithstanding the verdict. In part, the motion for the judgment notwithstanding the verdict was related to Virginia Gore's claim for loss of consortium. The court granted defendants' motion for a judgment notwithstanding the verdict with regard to Virginia Gore, but otherwise denied defendants' motion. Virginia Gore then filed a claim of appeal, challenging the circuit court's order granting defendants' motion for a judgment notwithstanding the verdict. Defendants filed a cross appeal with regard to the judgment entered in favor of Mark Gore and the circuit court's order denying their motion for a new trial, remittitur, or a judgment notwithstanding the verdict.
We affirm the circuit court's denial of defendants' motion for a judgment notwithstanding the verdict with regard to Mark Gore's claims. We reverse the circuit court's order granting defendants' motion for a judgment notwithstanding the verdict with regard to Virginia Gore's loss of consortium claim.
On October 11, 1981, Mark Gore went to Thorne Hospital's emergency room, complaining of pain associated with a swollen testicle. While initially a surgeon informed him that his testicle would have to be amputated, no operation occurred, apparently because that doctor ruled out torsion, a twisting of the testicle which would normally require amputation to prevent gangrene. Instead, the doctors who treated Gore at Thorne Hospital determined that he had an infection and proceeded to treat it. After discharge from the hospital, Gore continued to see one of the doctors who had seen him at the hospital. That doctor prescribed different antibiotics and cortisone. While the doctor believed that Gore's condition was improving, he was still concerned about the swelling, which to him appeared to be slightly decreased. At that time, Mark Gore's testicle was less than double in size.
On November 30, 1981, the sixth time Gore was treated by the doctor, the doctor changed antibiotics again and told him that he could return to work the following week. Gore believed that his condition was not improving and, therefore, did not return to the doctor's office for further treatment even though he had not been discharged from the doctor's care. We note that Mark Gore did not have medical insurance.
Mark Gore was subsequently treated for other ailments and, in fact, hospitalized for a head injury he received in an unrelated automobile accident. He did not mention that his testicle continued to be swollen. He testified that, on the basis of the information provided by the original surgeon who indicated that his testicle "wasn't any good anyway," he believed that he had to live with the swollen testicle.
In April 1983, Mark Gore went to the emergency room of another hospital because he was unable to get out of bed. At that time, the testicle was approximately six times its normal size. Gore was referred to Dr. Chin-Ti Lin, a urologist, who removed his testicle on April 14, 1983, suspecting cancer. Malignant cancer was confirmed, and Gore was scheduled to undergo a second surgery on May 9, 1983. Mark Gore and Virginia Gore married on May 7, 1983. Mark Gore underwent the second surgery to remove his lymph nodes on May 9, 1983.
Sometime after Mark Gore first met with Dr. Lin, it is not clear exactly when, Gore suspected that the doctors at Thorne Hospital had missed diagnosing the cancerous tumor. However, Gore was too worried about himself to consult an attorney. After the second surgery, Gore thought that he should consult an attorney because any money he recovered could be used to support his family in the event that he did not survive. At trial, Virginia Gore confirmed that, shortly after their discussion with Dr. Lin, she and Mark thought that the original doctors had committed malpractice in failing to detect Mark Gore's cancer. Virginia Gore was never questioned on direct examination or cross-examination concerning whether she first suspected medical malpractice before or after her marriage to Mark Gore.
On October 2, 1983, Mark and Virginia Gore met with defendant Block. Plaintiffs claim that thereafter their repeated telephone calls and letters went unanswered by defendants. On June 25, 1985, defendant Gurvitz wrote Mark Gore the following letter:
My sincere apologies for the delay in responding to your earlier communications however, we have been making a thorough inquiry into the facts of your alledged [sic] complaints. We have not been able to find an expert to make the appropriate causal relationship or support our theories of possible malpractice. Accordingly, we are not going to be proceeding on your claim and will close our file.
If you have any questions or want to discuss the matter further, please feel free to contact us.
Within two weeks, Mark Gore sought the advice of another attorney and on October 1, 1985, filed a legal malpractice suit against defendants. Therein, Mark Gore alleged that defendants failed to file a malpractice suit against doctors who treated him at Thorne Hospital within the applicable statute of limitations. On November 5, 1985, plaintiffs filed an amended complaint, adding Virginia Gore as a plaintiff and claiming that she had suffered a loss of consortium as the result of the legal malpractice.
Defendants filed a motion for summary disposition of Virginia Gore's loss of consortium claim, alleging that she had married Mark Gore after the removal of his testicle and, therefore, she had no loss of consortium claim. The circuit court denied defendants' motion for summary disposition.
At trial, the defendants conceded liability on the legal malpractice claim for failing to file a medical malpractice action within the statute of limitations; however, defendants claimed that medical malpractice had not occurred. Plaintiffs claimed that medical malpractice did occur. The jury found in favor of plaintiffs. As noted above, the court subsequently granted defendants' motion for a judgment notwithstanding the verdict with regard to Virginia Gore's claim.
On appeal, Virginia Gore claims that the trial court improperly granted defendants' motion for a judgment notwithstanding the verdict relative to her claim for loss of consortium. She contends that she was married to Mark Gore when the legal malpractice occurred and, therefore, is entitled to recover for loss of consortium on the legal malpractice claim.
While Virginia Gore was aware of Mark's physical condition when they married, neither was necessarily on notice that his physical condition was attributable to the medical malpractice committed in 1981. Since reasonable minds could differ concerning when the cause of action for medical malpractice was discovered, we cannot conclude as a matter of law that Virginia "married a cause of action" and thereby should be precluded from pursuing a claim for loss of consortium. Furby v. Raymark Industries, Inc., 154 Mich.App. 339, 347-348, 397 N.W.2d 303 (1986). Rather, the issue is one for the jury. Kermizian v. Sumcad, 188 Mich.App. 690, 692-693, 470 N.W.2d 500 (1991); Moss v. Pacquing, 183 Mich.App. 574, 583, 455 N.W.2d 339 (1990). Because, however, the jury was never instructed to determine when, through the exercise of reasonable diligence, plaintiffs discovered or should have discovered they had a possible cause of action, we must reverse the trial court's order granting defendants' motion for a judgment notwithstanding the verdict with regard to Virginia Gore's loss of consortium claim and remand this case for retrial on this issue.
We now turn to the issues raised in defendants' cross appeal.
Defendants first argue that certain evidence of the details of their breach of the standard of care was inadmissible and requires reversal. We disagree. Defendants admitted at trial that they breached the applicable standard of care by failing to pursue in a timely manner plaintiff's claim of medical malpractice. However, they disputed the merit of the underlying medical malpractice claim, thereby essentially denying liability for their professional malpractice.
The trial court permitted plaintiffs to call two of the individual defendants as witnesses over the objections of the defense. Defendants argue that their admission of negligence precluded any testimony concerning violation of the applicable professional standard of care. On appeal, defendants argue that the evidence was inadmissible and prejudicial.
The decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v. Watkins, 176 Mich.App. 428, 430, 440 N.W.2d 36 (1989); Kochoian v. Allstate Ins. Co., 168...
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