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Carriveau v. Mandell9/10/2002
d 843 (1997). The determination of whether and when a plaintiff discovered or should have discovered a claim is a question of fact for the jury, unless the facts are undisputed and the trial court can properly decide the issue as a matter of law. Id., 230.
As a general rule, if the existence of a claim or the identity of the person who is liable for the claim is fraudulently concealed, the action can be brought within two years after the person who is entitled to bring the action discovers or should have discovered the existence of the claim or the identity of the person who is liable. MCL 600.5855; MCL 600.5838a(2)(a). For fraudulent concealment to toll the running of the limitations period the fraud must be manifested by an affirmative act or misrepresentation. Silence alone is not sufficient. Bradley v Gleason Works, 175 Mich App 459, 462-462; 438 NW2d 330 (1989). There must be the employment of artifice designed to prevent inquiry or to escape investigation, and to mislead or hinder the acquisition of information disclosing the existence of a claim. McCluskey v Womack, 188 Mich App 465, 472; 470 NW2d 443 (1991).
Plaintiffs argue the circuit court erred by granting defendants' motion for summary disposition. We disagree and affirm. David Carriveau sustained the original injury in March 1979. Dr. Mandell performed surgery to repair the fracture, and Carriveau's condition began to improve. In July 1979, Carriveau refractured the arm. Dr. Mandell performed additional surgery, after which Carriveau lost all function in the arm. Knowledge of the existence of the condition, in and of itself, is insufficient to give rise to a cause of action. The claimant must also be aware that an act or omission was improper. Solowy, supra, 222.
The evidence, in particular the medical records generated when Carriveau underwent additional surgeries in 1981-1983, establish that at that time Carriveau was aware his arm had been improving before he refractured it, but he lost function in the arm after the July 1979 surgery. The loss of function had not occurred after the original injury , in spite of the fact that surgery had been required at that time; however, a loss of function occurred after the July 1979 surgery. The evidence showed that Carriveau associated the nerve injury with the surgery and that he was aware that after the July surgery he had an injury different in kind than after the original surgery.
Even assuming arguendo that Dr. Mandell's explanation was an attempt at fraudulent concealment, the attempt did not succeed, and Carriveau learned of the existence of an injury and its possible cause as early as 1981. The circuit court did not err in finding the undisputed evidence showed that Carriveau was aware of his injury and its possible cause as early as 1981, and that the claim accrued at that time. Id. The circuit court correctly decided the issue as a matter of law, id., 230, and properly granted summary disposition in favor of defendants on the ground that plaintiffs' action was barred by the statute of limitations. MCL 600.5805(5); MCL 600.5838a(2).
Affirmed.
Helene N. White
Janet T. Neff
Kathleen Jansen
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