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Stampwala v. Zamiri6/3/2003
UNPUBLISHED
Plaintiff appeals as of right from a judgment based on a jury verdict of no cause of action. We affirm in part, reverse in part, and remand.
I. Facts and Procedure
In 1997, plaintiff was diagnosed with having a cancerous growth in her left breast. Plaintiff met with defendant Dr. Joseph Zamiri and discussed performing a lumpectomy to remove the cancerous growth. Plaintiff testified that Dr. Zamiri did not tell her that there was a possibility that she would need a mastectomy, but Dr. Zamiri testified that he did discuss the possibility of a mastectomy with plaintiff. Before her surgery, plaintiff signed a form consenting to a lumpectomy. During the surgery, Dr. Zamiri discovered additional, unexpected cancerous growth in plaintiff's breast. While plaintiff was still under anesthesia in the surgery room, Dr. Zamiri went into the waiting room and told plaintiff's sister, Dharmista Stampwala, and plaintiff's brother-in-law/ex-husband, Suresh Stampwala, that plaintiff needed a mastectomy.
Dr. Zamiri told Dharmista and Suresh that plaintiff would eventually need a mastectomy, whether it was during this surgery or at a later date. Dharmista and Suresh agreed to the mastectomy and Dr. Zamiri proceeded to perform the procedure. After the surgery, plaintiff filed suit against defendants, alleging: (1) defendants were liable for medical malpractice because Dr. Zamiri's failure to obtain plaintiff's informed consent before performing the mastectomy violated the standard of care owed to plaintiff and (2) defendants were liable for assault and battery because Dr. Zamiri's performed the mastectomy without plaintiff's consent. During pretrial proceedings, just two days prior to the start of trial, plaintiff voluntarily dismissed the medical malpractice count. Within hours of placing the voluntary dismissal of the medical malpractice claim on the record, plaintiff sought to withdraw the dismissal and reinstate the claim. However, the trial court refused to allow plaintiff to reinstate the medical malpractice claim. A jury trial ensued. Following the trial, a jury entered a verdict of no cause of action against plaintiff.
II. Dismissal of Medical Malpractice Count
Plaintiff first argues that the trial court abused its discretion in denying her request to reinstate her medical malpractice claim against defendants. "This Court reviews for an abuse of discretion a trial court's decision concerning a motion to reinstate an action." Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 138; 624 NW2d 197 (2000). A voluntary dismissal by a plaintiff is without prejudice unless stated in the notice of dismissal. MCR 2.504(1). There is no indication in the present case that the voluntary dismissal was meant to be with prejudice.
In this case, the trial court refused to rule on plaintiff's motion for summary disposition in regard to her battery claim until plaintiff decided whether she was going to voluntarily dismiss her medical malpractice claim. It appears plaintiff voluntarily dismissed her malpractice claim because she believed the trial court had insinuated that it would be willing to grant summary disposition in her favor on her battery claim if plaintiff dismissed her malpractice claim. After the trial court declined to rule on plaintiff's motion for summary disposition and made several rulings plaintiff perceived to be unfavorable to her battery claim, plaintiff sought to reinstate her malpractice claim. The trial court refused to reinstate plaintiff's medical malpractice claim without giving any reason for its decision other than that plaintiff had voluntarily dismissed it. Because the standard of review is abuse of discretion,
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