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Carriveau v. Mandell9/10/2002
UNPUBLISHED
Plaintiffs appeal as of right the circuit court's order granting defendants' motion for summary disposition. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
On March 30, 1979, David Carriveau fractured his upper left arm and damaged the soft tissues and the radial nerve. Dr. Mandell performed an open reduction of the fracture. Carriveau refractured his arm in July 1979. On July 16, 1979, Drs. Mandell and Bingham repaired the fracture by inserting a plate and screws. Thereafter Carriveau experienced total numbness in his left arm, and was unable to move his wrist or open his hand. Dr. Mandell maintained the numbness was due to scarring related to the original injury . Dr. Eugene Horrell, a hand surgeon, performed several procedures designed to give Carriveau some function in his arm. In 1998, Dr. Horrell informed Carriveau the original injury could not have caused the loss of function of the radial nerve, and the nerve must have been damaged during the surgery in July 1979.
Plaintiffs filed suit alleging that defendants committed malpractice by damaging the radial nerve during the July 1979 surgery, and this negligence proximately caused Carriveau's injuries. The complaint alleged that Dr. Mandell told Carriveau the cause of his injuries was callus and scarring, and that Dr. Mandell made this statement knowing it was false and with the intent to conceal his negligence. The complaint alleged that Carriveau first discovered the negligence in 1998. Laura Carriveau asserted a claim for loss of consortium.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) and (10), arguing that plaintiffs' claims were barred by the applicable statute of limitations, and that a genuine issue of fact did not exist regarding fraudulent concealment or delayed discovery of the claim because medical records from 1981-1983 established that Carriveau was aware he had suffered radial nerve palsy as a result of the July 1979 surgery. In response, plaintiffs argued that although Carriveau was aware of the loss of function in his arm immediately after the 1979 surgery, his ability to pursue a claim was hindered by Dr. Mandell's fraudulent explanation that the numbness was a result of the original injury .
The circuit court granted summary disposition in favor of defendants, finding the evidence established that Carriveau knew as early as 1981 that he lost function in the arm after the July 1979 surgery, and that that knowledge was sufficient to make him aware that he had a possible cause of action. The circuit court concluded that plaintiffs' cause of action was not filed within six months of the discovery of a possible cause of action, as required by MCL 600.5838a(2).
We review a trial court's decision on a motion for summary disposition de novo. Harrison v Olde Financial Corp, 225 Mich App 601, 605; 572 NW2d 679 (1997).
The statute of limitations for medical malpractice actions is two years. MCL 600.5805(5). The two-year limitations period is subject to a six-month discovery rule exception. Under this exception a claim may be commenced after the expiration of the two-year period if it is commenced within six months after the plaintiff discovered or should have discovered the claim. MCL 600.5838a(2). The discovery rule does not require that the plaintiff know with certainty the defendant committed malpractice. It requires the plaintiff know of the act or omission giving rise to the malpractice and that the plaintiff have reason to believe it was improper. A claim accrues once the plaintiff is aware of the injury and its possible cause. Solowy v Oakwood Hosp Corp, 454 Mich 214, 222; 561 NW2
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