DARLENE DUDEK V ST JOHN'S HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
DARLENE DUDEK,
UNPUBLISHED
June 11, 2002
Plaintiff-Appellant-Cross-Appellee,
v
No. 230352
Macomb Circuit Court
LC No. 00-002117-NH
ST. JOHN’S HOSPITAL,
Defendant-Appellee-Cross-
Appellant.
Before: Murphy, P.J., and Jansen and Kelly, JJ.
MURPHY, P.J. (concurring in part, dissenting in part).
I respectfully disagree with the majority’s opinion because it fails to take into
consideration the fact that plaintiff underwent seven laparoscopic procedures since 1991,
creating great and understandable difficulty in identifying not a new defendant but in identifying
the possible cause of her injury. Although plaintiff may have known on January 8, 1998, that the
foreign object was left behind from a laparoscopic procedure, such a procedure is involved in a
wide range of surgeries, including the 1996 gallbladder surgery and the 1995 hysterectomy. In
order to properly allege the cause of plaintiff’s injury, it was necessary to determine the
particular surgery out of which the alleged negligence arose.1 Accordingly, I would find that the
September 22, 1999 deposition of Dr. Schroder triggered plaintiff’s knowledge of a possible
cause of action arising out of the 1995 hysterectomy; therefore, plaintiff timely filed the
amended complaint, on January 8, 1998, within six months of discovery pursuant to MCL
600.5838a(2).
I agree with the majority that a plaintiff becomes aware of a possible cause of action, for
purposes of commencing the time period under the discovery rule, when the plaintiff is aware of
an injury and its possible cause. Solowy v Oakland Hospital Corp, 454 Mich 214, 221-222; 561
NW2d 843 (1997), citing Moll v Abbott Laboratories, 444 Mich 1, 23-24; 506 NW2d 816
(1993).
1
If the majority’s view is accepted in this case, plaintiff arguably should have brought suit
against the physicians and/or institutions where the seven laparoscopic procedures were
performed since 1991. I would suggest that this “shotgun” approach would be inconsistent with
the intent of the Legislature in its numerous amendments to the medical malpractice statutes.
-1-
Here, Dr. Dines’ operative report simply notes that it appears that the foreign object was
left behind after a laparoscopic surgery without any indication as to a specific surgery. Plaintiff
testified at her deposition that Dr. Dines indicated that the foreign object was left behind from
the gallbladder surgery. Defendant makes no claim that an operative report was available, or
even existed, regarding the gallbladder surgery for plaintiff to review, and it was not until Dr.
Schroder’s deposition that plaintiff was able to obtain any details regarding the gallbladder
surgery. Additionally, the operative report concerning the 1995 laparoscopic procedure
indicated that “[a]t the end of the procedure, the sponge, instrument, and needle counts were
correct times two.” I see no facts presented suggesting that plaintiff knew or should have known
that her cause of action arose out of the 1995 hysterectomy, instead of the 1996 gallbladder
surgery, prior to the September 1999 deposition, nor do I find any lack of due diligence on
plaintiff’s part.2 Therefore, plaintiff’s amended complaint is not time-barred.
I am in agreement with the majority that plaintiff failed to sufficiently plead fraudulent
concealment, and that the fraud claim was properly dismissed.
Finally, regarding defendant’s argument that plaintiff failed to file a new affidavit of
merit with the first amended complaint, I would find that the affidavit of merit filed with the
original complaint complied with MCL 600.2912d and could be used in correlation with the
allegations regarding a foreign object contained in the first amended complaint.
A thorough review of MCL 600.2912d does not indicate any requirement that a plaintiff
must file a new affidavit of merit every time an amended complaint is filed, but only the
requirement that “an” affidavit be filed in a medical malpractice action. Where the language in a
statute is clear, the Legislature must have intended the meaning it has plainly expressed, and the
statute must be enforced as written. Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d
233 (1997). I would leave for another day the question regarding whether there are some
situations where an amended complaint requires the filing of a new affidavit of merit. The
statute does not mandate such an action, and under the facts of this case, I see no reason why
plaintiff should be required to file a new affidavit of merit, where the allegations of malpractice
and breach of the standard of care are essentially the same in both complaints, i.e., a surgical
instrument left inside a patient after surgery constitutes medical malpractice. Additionally, the
purpose of MCL 600.2912d is to deter frivolous medical malpractice claims, VandenBerg v
VandenBerg, 231 Mich App 497, 502-503; 586 NW2d 570 (1998), and that purpose had been
served in the present case based on the affidavit of merit filed with the original complaint.
2
I would reject defendant’s and the majority’s reliance on Poffenbarger v Kaplan, 224 Mich
App 1; 568 NW2d 131 (1997). The Poffenbarger panel, addressing and rejecting an attempt by
the plaintiff to add party defendants through an amended complaint, stated that “[t]he discovery
period applies to discovery of a possible claim, not the discovery of the defendant’s identity.”
Id. at 12, citing Weisburg v Lee, 161 Mich App 443, 448; 411 NW2d 728 (1987). Here, plaintiff
did not attempt to add a party through the amendment, and defendant’s identity is not at issue;
instead the discovery related to the possible cause of the foreign object being left in plaintiff.
Therefore, the matter falls within the purview of plaintiff’s discovery of a “possible cause of
action” as defined in Solowy.
-2-
I would reverse the trial court’s judgment granting defendant’s motion for summary
disposition.
/s/ William B. Murphy
-3-
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