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Eubanks v. Henry Ford Hospital8/27/2002
UNPUBLISHED
In this consolidated appeal, defendant Henry Ford Hospital appeals by leave granted two orders of the circuit court denying defendant's motion to change venue and granting in part defendant's motion for summary disposition, respectively. We affirm in part and remand in part for proceedings consistent with this opinion.
The decedent, Patricia Gray, was on a heart donor/recipient list to receive a heart transplant. On September 19, 1998, a potential heart became available; however, defendant's employees failed to contact Gray in time and the opportunity for the heart was lost. In December 1998, Gray suffered a heart attack and died. Plaintiff Laverne Eubanks, Gray's sister and the personal representative of Gray's estate, filed a complaint against defendant, claiming common- law negligence.
Defendant first argues that the trial court's decision to change venue was clearly erroneous and based on an incorrect determination of "original injury ." See MCL 600.1629(1)(a). We agree that the trial court's determination of original injury was clear error but hold that the correct determination supports the trial court's ultimate conclusion.
"This Court reviews a trial court's ruling in response to a motion to change improper venue under the clearly erroneous standard." Massey v Mandell, 462 Mich 375, 379; 614 NW2d 70 (2000), citing Shock Bros, Inc v Morbark Industries, Inc, 411 Mich 696, 698-699; 311 NW2d 722 (1981). A decision is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made. Massey, supra at 379.
In a wrongful death action, venue is determined pursuant to the terms of MCL 600.1629, stating, in relevant part:
(1) . . . n an action based on tort or another legal theory seeking damages for personal injury , property damage, or wrongful death, all of the following apply:
(a) The county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:
(i) The defendant resides, has a place of business, or conducts business in that county.
(ii) The corporate registered office of a defendant is located in that county.
To determine venue, this statute looks first to the county where the "original injury " occurred. MCL 600.1629(1)(a). "Original injury" is not a defined term. However, in Karpinsky v St John Hospital-Macomb Center Corp, 238 Mich App 539, 543-545; 606 NW2d 45 (1999), we concluded that in a wrongful death case, the "original injury" is the injury resulting in death, rather than the death itself. Id. at 544. An original injury cannot ordinarily be an ongoing event. Id. at 546-547.
The trial court determined that the original injury occurred when defendant called Gray at her home, leaving a message that she lost the opportunity for the heart. Although there was evidence supporting the trial court's conclusion, we are left with the definite and firm conviction that a mistake was made; therefore, the decision was clearly erroneous. In re Attorney Fees and Costs, 233 Mich App 694, 701; 593 NW2d 589 (1999). Based on the evidence adduced below, we conclude that the original injury eventually causing death was the missed opportunity when the heart was no longer available to Gray. The evidence supports the conclusion that the heart remained available to Gray until approximately 5:00 p.m. because it was not placed with another recipient. In addition, we conclude that the original injury took place at the hospital, located in Wayne County, where the decision was made that the heart was no longer available to Gray. Because the original
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