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Putnam v. Sezgin12/2/2004
UNPUBLISHED
In this medical malpractice case, summary disposition was granted for defendant Doctors Hospital in June 2002. Subsequently, on March 10, 2003, summary disposition was granted to defendant Yucel Sezgin, M.D. Plaintiffs appeal as of right. Defendant Doctors Hospital cross appeals, arguing that an alternate ground exists to support the grant of summary disposition. We affirm.
On July 29, 1999, plaintiff Michael Putnam underwent an anterior discectomy, decompression, corpectom and fusion, which was preformed by Dr. Sezgin at Doctors Hospital. Plaintiff thereafter suffered "blacking out" symptoms, chronic numbness in his face and head, shortness of breath, neck pains, and numbness in two fingers. He subsequently treated with another physician, who concluded that the symptoms were caused by the misplacement of screws during the initial surgery. On July 19, 2001, plaintiffs served a notice of intent to file a claim against defendants. During the 182-day waiting period, MCL 600.2912b(1), defendant Dr. Sezgin filed for bankruptcy . Although plaintiffs were listed on schedule F of the bankruptcy petition, and potential creditors were notified by the bankruptcy court on November 26, 2001, plaintiffs claimed they were unaware of the bankruptcy stay. On January 24, 2002, within days of the expiration of the statutory 182-day waiting period, plaintiffs filed suit in circuit court.
By February 19, 2002, being fully aware of the pending bankruptcy proceedings, plaintiffs filed a complaint in the bankruptcy court, objecting to Dr. Sezgin's discharge in bankruptcy. While the complaint was pending in the bankruptcy court, plaintiffs sought an extension of their summons in the circuit court. On April 25, 2002, the date the initial summons was due to expire, a second summons was ordered, extending the time for service to July 25, 2002. While plaintiffs sought and obtained an extension on the expiring summons, plaintiffs failed to serve Dr. Sezgin or his professional corporation.
On May 20, 2002, Dr. Sezgin's bankruptcy attorneys formally notified the circuit court of the pending bankruptcy proceedings and automatic stay. On the same day, the court entered an order administratively closing the circuit court case. While the case was administratively closed, the second summons expired without Dr. Sezgin or his professional corporation having been served. The case proceeded against Doctors Hospital, however, and summary disposition for the hospital was granted in two separate orders.
On October 31, 2002, Dr. Sezgin was discharged from bankruptcy . Plaintiffs took no action in the circuit court until December 26, 2002, when they moved to extend the second summons. The court ordered issuance of a third summons. This summons and a copy of the complaint were served on Dr. Sezgin in January 2003. His counsel thereafter entered a limited appearance, moved to quash the third summons, and moved for an order granting summary disposition on the ground that the complaint filed during the pendency of the bankruptcy stay was void. The trial court granted summary disposition on March 10, 2003.
I.
Plaintiffs first argue that summary disposition was improperly granted on their claim of vicarious liability against Doctors Hospital. Doctors Hospital moved for summary disposition on this claim under MCR 2.116(C)(10). We review the trial court's decision de novo. Stopcynzski v Woodcox, 258 Mich App 226, 229; 671 NW2d 119 (2003).
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. When reviewing a trial court's decision to grant a motion for summary disposition, we consider the pleadings, affidavits,
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