Kermizian v. Sumcad, Docket No. 118149

• Decision Date: 06 May 1991
• Docket Number: Docket No. 118149
• Citation: 470 N.W.2d 500,188 Mich.App. 690
• Parties: George KERMIZIAN, Plaintiff-Appellant, v. Bernard T. SUMCAD, M.D., Bernard T. Sumcad, M.D., P.C., Defendants-Appellees, and Oakwood Hospital Corporation, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 500

470 N.W.2d 500

188 Mich.App. 690

George KERMIZIAN, Plaintiff-Appellant, v. Bernard T. SUMCAD, M.D., Bernard T. Sumcad, M.D., P.C. Defendants-Appellees and Oakwood Hospital Corporation, Defendant.

Docket No. 118149.

Court of Appeals of Michigan.

Submitted Nov. 21, 1990, at Detroit.

Decided May 6, 1991, at 9:15 a.m.

Released for Publication June 21, 1991.

Thurswell, Chayet & Weiner by Cyril V. Weiner and Sheryl R. Lederman, Southfield, for plaintiff-appellant.

Siemion, Huckabay, Bodary, Padilla & Morganti, P.C. by Raymond W. Morganti, Detroit, for defendants-appellees Sumcad.

Before MARILYN J. KELLY, P.J., and HOLBROOK and SULLIVAN, JJ.

SULLIVAN, Judge.

The Wayne Circuit Court granted a motion for summary disposition brought by defendants-appellees under MCR 2.116(C)(7) on the ground that plaintiff's medical malpractice claim is barred by the statute of limitations. Plaintiff appeals as of right, arguing that summary disposition was inappropriate because the question of when plaintiff discovered or should have discovered his claim is a question of fact for the jury. We agree.

Defendant Dr. Sumcad performed a transurethral resection of plaintiff's prostate gland in October 1977. Nine years later, on September 25, 1986, plaintiff filed a complaint against Dr. Sumcad, alleging that the doctor committed medical malpractice in performing the surgery. It is undisputed that plaintiff did not file his complaint within the applicable two-year period of limitation contained in M.C.L. Sec. 600.5805(4); M.S.A. Sec. 27A.5805(4). Instead, the dispute is over whether plaintiff filed the instant action within six months after he discovered or should have discovered his claim. M.C.L. Sec. 600.5838(2); M.S.A. Sec. 27A.5838(2).

Since the adoption of the Michigan Court Rules in 1985, panels of this Court have disagreed over whether factual disputes regarding when discovery occurred or should have occurred should be decided by the judge as a preliminary question or by the jury. Moss v. Pacquing, 183 Mich.App. 574, 579, 455 N.W.2d 339 (1990). The majority in Blana v. Spezia, 155 Mich.App. 348, 399 N.W.2d 511 (1986), held that such disputes should be decided by the judge as a preliminary question. The majority was concerned that a jury might not be able to fairly decide when a plaintiff discovered or should have discovered a claim because of its desire to award the plaintiff damages. Id., p. 353, 399 N.W.2d 511. The majority further relied on MCR 2.116(G)(5) which, contrary to GCR 1963, 116.3, requires a trial court to consider affidavits and other evidence in deciding a motion for summary disposition based on the statute of limitations. Such a change in the court rules the majority explained, "may indicate a broader role for the trial judge in deciding factual issues concerning the application of the statute of limitations." Id., p. 354, 399 N.W.2d 511.

Subsequent panels have declined to follow Blana, as do we. We adopt as our own reasoning Judge Murphy's reasoning in Moss, supra. Judge Murphy began by quoting MCR 2.116(I)(3), which provides in pertinent part:

A court may, under proper circumstances, order immediate trial to resolve any disputed issue of fact, and judgment may be entered forthwith if the proofs show that a party is entitled to judgment on the facts as determined by the court.... If the motion is based on subrule (C)(7) and a jury trial has been demanded, the court may order immediate trial, but must afford the parties a jury trial as to issues raised by the motion as to which there is a right to trial by jury. [Emphasis added.]

Judge Murphy went on to explain:

At the time our Supreme Court adopted this court rule, there existed a long line of cases which held that, where there is a dispute concerning the date when a plaintiff discovered, or reasonably should have discovered, his cause of action, this factual determination is to be made by a jury. Winfrey v Farhat, 382 Mich 380, 387; 170 NW2d 34 (1969); Wallisch v Fosnaugh, 126 Mich App 418, 424-425; 336 NW2d 923 (1983), lv den 418 Mich 871 (1983); Leyson [v. Krause ], 92 Mich App 764-765 [285 N.W.2d 451 (1979) ]; Leary v Rupp, 89 Mich App 145; 280 NW2d 466 (1979); Kelleher v Mills, 70 Mich App 360; 245 NW2d 749 (1976). Accordingly, we can only conclude that the issue of discovery is an issue to which a right to jury trial exists unless the facts are undisputed and the trial court can properly conclude that the plaintiff's claim is barred as a matter of law. This interpretation is consistent with the notes following the court rule:

"Subrule (I) includes the provisions regarding disposition of the motion found in GCR 1963, 116.3 and 117.3. In addition, under subrule (I)(2), an immediate trial of disputed factual issues raised by a motion under subrule (C)(7) may be held despite the fact that a jury has been demanded. The immediate trial would, however, be by jury." [Emphasis added.]

We disagree with the assertion in Blana, supra [155 Mich.App.], p 354 , that the language of MCR 2.116(G)(5) serves as support for the conclusion that the discovery issue is to be decided by the trial court after an evidentiary hearing. MCR 2.116(G)(5) provides in part:

"The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1)-(7) or (10)."

We read this subrule as mandating no more than the trial judge take advantage of as broad a base of evidentiary material as possible before determining whether a material factual dispute exists. We find nothing in this subrule, or in MCR 2.116(I)(3) for that matter, that expressly repudiates the time-honored precepts that where no factual disputes exist, the question becomes one of law appropriate for the trial court to answer, but that where a factual dispute does exist, the question is to be answered by a jury. Wallisch, supra [126 Mich.App.], p 424 . [Moss, supra, 183 Mich.App. pp. 580-581, 455 N.W.2d 339.]

Also see Coleman v. Dowd, 185 Mich.App. 662, 665-666, 462 N.W.2d 809 (1990), Wakefield v. Hills, 173 Mich.App. 215, 433 N.W.2d 410 (1988), and the dissenting opinion of Judge D.E. Holbrook, Jr., in Blana, supra.

Having decided that summary disposition is inappropriate when a trial court cannot decide as a matter of law when a plaintiff discovered or should have discovered his claim, we now review the record before us in light of the pertinent law. The discovery rule does not require that a plaintiff know with certainty that the defendant committed malpractice before the six-month discovery period begins to run. Griffith v. Brant, 177 Mich.App. 583, 588, 442 N.W.2d 652 (1989). All that is required is that the plaintiff know of the act or omission of the defendant and have reason to believe that the medical treatment was improper or was performed in an improper manner. Id., pp. 587-588, 442 N.W.2d 652; Wakefield, supra, 173 Mich.App. p. 218, 433 N.W.2d 410. Here, a fact question exists regarding when plaintiff had reason to believe that the transurethral resection was performed in an improper manner.

Following the 1977 surgery, plaintiff began experiencing urinary incontinence. ¹ The incontinence neither improved nor worsened, but still existed at the time plaintiff filed his complaint nine years later. Although he informed defendant Dr. Sumcad of the incontinence, plaintiff testified in his deposition that the...