Shember v. U of M Med. Ctr.

• Decision Date: 21 August 2008
• Docket Number: Docket No. 276515.
• Citation: 280 Mich. App. 309,760 N.W.2d 699
• Parties: SHEMBER v. UNIVERSITY OF MICHIGAN MEDICAL.
• Court: Court of Appeal of Michigan — District of US

760 N.W.2d 699

280 Mich. App. 309

SHEMBER v. UNIVERSITY OF MICHIGAN MEDICAL.

Docket No. 276515.

Court of Appeals of Michigan.

Submitted June 11, 2008, at Lansing.

Decided August 21, 2008, at 9:00 a.m.

Mark Granzotto, P.C. (by Mark Granzotto), Royal Oak and Natalie C. Qandah, P.C. (by Natalie Qandah), for Linda Shember.

Foster, Swift, Collins & Smith, P.C. (by Richard C. Kraus), Lansing, for Pia M. Sundgren and others.

Before: MARKEY, P.J., and WHITE and WILDER, JJ.

MARKEY, P.J.

In this medical malpractice action, plaintiff appeals by right the trial court's February 5, 2007, order granting summary disposition in favor of four individual defendants, Drs. Carol L. Bradford, Dale Ekbom, James A. Freer, and Paul DeFlorio. Plaintiff also challenges the trial court's earlier June 5, 2006, order dismissing her claims against the other five individual defendants, Drs. Pia M. Sundgren, Anthony D'Amico, Steven Kronick, John N. Shenk, and Steven Krafcik, and denying her motion to amend the complaint to allege fraudulent concealment. We affirm.

I. BACKGROUND

On July 31, 2003, plaintiff underwent surgery at the University of Michigan Hospital to drain a cervical epidural abscess. She allegedly developed left hemiplegia before the surgery, which left her without the use of her left arm and leg. In a notice of intent to file a claim, MCL 600.2912b, mailed on July 20, 2005, plaintiff asserted that her condition was caused by the failure of health care providers to timely and appropriately diagnose and treat her condition on July 24 and 30, 2003, and that she suffered further injury because of improper postoperative care. The notice was addressed to the University of Michigan Hospitals & Health Centers, various unnamed persons, and 20 named physicians, including five of the individual defendants, Drs. Bradford, Ekbom, Freer, DeFlorio, and Krafcik.

In an amended notice of intent, dated January 18, 2006, plaintiff modified the basis of her claims against the individual defendants in this case to allege more specific standards of care applicable to emergency physicians and nurses, the "radiologist/neuroradiologist," and "ENT consulting physicians," and added allegations regarding a July 28, 2003, clinical visit.

On January 20, 2006, plaintiff filed the instant action against the University of Michigan defendants and the nine individual defendants. In February 2006, the individual defendants moved for summary disposition under MCR 2.116(C)(7) and (10) on the grounds that plaintiff's claims were barred by the statute of limitations and that the claim against Dr. Krafcik lacked an appropriate affidavit of merit required by MCL 600.2912d. Before the hearing on the motion for summary disposition, plaintiff moved to amend her complaint pursuant to MCR 2.116(I)(5) and 2.118(A)(2) to add additional theories of liability and to allege fraudulent concealment. In a proposed amended complaint filed with the motion, plaintiff alleged that "defendants," by withholding certain medical records, fraudulently concealed the identity of the four individual defendants who were not named in her initial presuit notice of intent to file a claim.

Following a hearing on May 17, 2006, the trial court entered an order dated June 5, 2006, dismissing with prejudice plaintiff's claims against Drs. Sundgren, D'Amico, Kronick, Shenk, and Krafcik. Plaintiff's motion to amend her complaint to allege fraudulent concealment was also denied. The trial court allowed the parties to file supplemental briefs with respect to the remaining individual defendants and the additional theories of liability alleged in plaintiff's proposed amended complaint. Plaintiff also filed a motion for reconsideration of the order denying her motion to amend her complaint to allege fraudulent concealment, asserting that she had additional evidence to support the claim.¹

On February 5, 2007, the trial court issued an opinion and order dismissing the four remaining individual defendants, Drs. Bradford, Ekbom, Freer, and DeFlorio, with prejudice. Plaintiff's motions for reconsideration and to amend her complaint were also denied.

II. STANDARD OF REVIEW

We review de novo a trial court's grant of summary disposition to determine if the moving party was entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Questions of statutory construction are also reviewed de novo. Woodard v. Custer, 476 Mich. 545, 557, 719 N.W.2d 842 (2006). Summary disposition may be granted under MCR 2.116(C)(7) when a claim is barred because of a statute of limitations. The moving party may support the motion with affidavits, depositions, admissions, or other documentary evidence. Maiden, supra at 119, 597 N.W.2d 817. Such evidence is considered to the extent that the content or substance would be admissible as evidence. MCR 2.116(G)(6). The allegations in the complaint are accepted as true unless contradicted by the documentary evidence. Maiden, supra at 119, 597 N.W.2d 817. "If the pleadings or other documentary evidence reveal no genuine issues of material fact, the court must decide as a matter of law whether the claim is statutorily barred." Holmes v. Michigan Capital Med. Ctr., 242 Mich.App. 703, 706, 620 N.W.2d 319 (2000).

We review a trial court's denial of a motion to amend a complaint for an abuse of discretion. Weymers v. Khera, 454 Mich. 639, 654, 563 N.W.2d 647 (1997). An abuse of discretion occurs when a trial court's decision falls outside the range of principled outcomes. Woodard, supra at 557, 719 N.W.2d 842. A motion to amend under MCR 2.118 should ordinarily be granted, but may be denied for the following particularized reasons: "`[1] undue delay, [2] bad faith or dilatory motive on the part of the movant, [3] repeated failure to cure deficiencies by amendments previously allowed, [4] undue prejudice to the opposing party by virtue of the amendment, [and 5] futility....'" Sands Appliance Services, Inc. v. Wilson, 463 Mich. 231, 239-240, 615 N.W.2d 241 (2000), quoting Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 656, 213 N.W.2d 134 (1973).

III. MALPRACTICE CLAIMS AGAINST DRS. SUNDGREN, D'AMICO, KRONICK, AND SHENK

Because it concluded that the statutory period of limitations had expired, the trial court granted summary disposition in favor of Drs. Sundgren, D'Amico, Kronick, and Shenk, who were not named in plaintiff's initial notice of intent to file a claim. The trial court further determined that plaintiff had failed to demonstrate any reason for tolling the limitations period in spite of plaintiff's claim of fraudulent concealment or the initial or amended notice of intent to file a claim.

Initially, we note that this Court previously denied defendants' motion to strike the portion of plaintiff's brief relating to the earlier June 5, 2006, order. Shember v. Univ. of Michigan Med. Ctr., unpublished order of the Court of Appeals, entered November 30, 2007 (Docket No. 276515). Further, plaintiff's failure to list each individual defendant as an appellee in the claim of appeal, as required by MCR 7.204(D)(1), was not fatal to this Court's jurisdiction over the four individual defendants, who each received notice of the appeal. See Kaufman & Payton, PC v. Nikkila, 200 Mich.App. 250, 258 n. 1, 503 N.W.2d 728 (1993) (Connor, J., dissenting). Additionally, a party claiming an appeal of right from a final order is free to raise issues on appeal related to prior orders. See Bonner v. Chicago Title Ins. Co., 194 Mich.App. 462, 472, 487 N.W.2d 807 (1992). Therefore, appellate review of the trial court's decision dismissing these four individual defendants is not precluded.

Nonetheless, "[i]t is axiomatic that where a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by this Court." Prince v. MacDonald, 237 Mich.App. 186, 197, 602 N.W.2d 834 (1999). An appellant may not leave it to this Court to discover and rationalize the basis of a claim. Peterson Novelties, Inc. v. City of Berkley, 259 Mich.App. 1, 14, 672 N.W.2d 351 (2003). Although this Court may overlook preservation requirements in certain circumstances, "a party's failure to brief an issue that necessarily must be reached precludes appellate relief." City of Riverview v. Sibley Limestone, 270 Mich.App. 627, 638, 716 N.W.2d 615 (2006).

Here, plaintiff has not raised any issue challenging the trial court's determination that, absent a legally cognizable tolling event, the two-year limitations period in MCL 600.5805(6) expired before the complaint was filed on January 20, 2006; consequently, summary disposition of the malpractice claims against Drs. Sundgren, D'Amico, Kronick, and Shenk was proper under MCR 2.116(C)(7). Further, plaintiff does not argue that she may take advantage of the presuit notice tolling provision in MCL 600.5856 with respect to these individual defendants.

At best, plaintiff has presented an issue challenging the trial court's determination that there was no evidence of fraudulent concealment to toll the limitations period. But plaintiff incorrectly presents this issue solely as one relevant to whether she should have been allowed to amend her complaint to add a substantive claim for fraudulent concealment.

It is true that a plaintiff must allege in a complaint facts supporting fraudulent concealment in order to rely on the fraudulent concealment tolling provision.² Sills v. Oakland Gen. Hosp., 220 Mich.App. 303, 310, 559 N.W.2d 348 (1996); Dunmore v. Babaoff, 149 Mich.App. 140, 146-147, 386 N.W.2d 154 (1985). But the fraudulent concealment tolling provision is not itself a substantive cause of action for which a plaintiff may recover damages from a tortfeasor.

Fraudulent concealment is recognized as a tolling event in MCL 600.5855. See Sills, supra; Dunmore, supra. Plaintiff is charged with the discovery of facts that with the exercise of reasonable diligence she ought to have discovered. The Meyer & Anna Prentis...