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Theisen v. Knake6/18/1999
Summary Disposition was granted in favor of defendants James Knake, Elizabeth Copland and St. Joseph Mercy Hospital on plaintiff's claims arising out of the alleged medical malpractice of defendants in their treatment of decedent. Plaintiff appeals as of right, and we affirm in part, reverse in part and remand for proceedings consistent with this opinion.
Plaintiff, as the personal representative of her deceased husband's estate, filed suit alleging that defendants failed to accurately read x rays taken of decedent's hip in January 1995 and failed to properly diagnose his condition. Instead of diagnosing a metastasized cancer pursuant to the January 1995 x-rays, either defendant Knake or defendant Copland reported that decedent suffered only from very minimal arthritis in the hip. Although the parties dispute when the cancer was actually diagnosed, plaintiff alleged that it was not diagnosed until April 1995. Decedent died in July 1995.
In her second amended complaint, plaintiff alleged that as a result of defendants' failure to timely render a proper diagnosis, decedent was not immediately afforded aggressive treatment that may have prolonged his life. She also alleged that defendants' malpractice caused a loss of certain retirement and life-long medical benefits to decedent and his dependents. Apparently, decedent and his family would have been entitled to certain enhanced benefits if the employer had been given a full five-month notice of the decedent's terminal condition. The employer was not given a full five-month notice because of the delay in diagnosis.
Defendant hospital moved for summary Disposition pursuant to MCR 2.116(C)(8), arguing that plaintiff did not allege a valid medical malpractice claim. Defendant Copland filed a concurrence and defendant Knake, orally at the motion hearing, joined in the motion. The trial court granted summary Disposition, and a stipulation was thereafter entered dismissing defendant Huron Valley Radiology, P.C.
On appeal, we review de novo a grant of summary Disposition pursuant to MCR 2.116(C)(8). Beaty v Hertzberg & Golden, PC, 456 Mich 247, 253; 571 NW2d 716 (1997). All factual allegations in support of the claim are accepted as true, as are any reasonable inferences or Conclusions which can be drawn from the facts. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995); Smith v Stolberg, 231 Mich App 256, 258; 586 NW2d 103 (1998). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Simko, supra.
There are two basic issues that must be resolved. First, we must decide whether plaintiff was entitled to file a claim for medical malpractice arising out of the alleged untimely diagnosis of decedent's cancer. Second, we must decide whether, assuming plaintiff was entitled to file a claim, a valid malpractice claim was pleaded such that the grant of summary Disposition pursuant to MCR 2.116(C)(8) was inappropriate.
We find that plaintiff was clearly entitled to bring the medical malpractice cause of action against defendants. MCL 600.2921; MSA 27A.2921 provides:
"All actions and claims survive death. Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to the next section. If an action is pending at the time of death the claims may be amended to bring it under the next section. A failure to so amend will amount to a waiver of the claim for additional damages resulting from death."
Defendants take the position that only pending claims survive death pursuant to the statute. The tri
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