 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Clark v. Martin12/13/2002
UNPUBLISHED
In this dental malpractice case, plaintiffs appeal as of right an order granting summary disposition for defendants. Plaintiffs assert that their action is not barred by the six-year statute of repose because defendants wrongfully left a foreign object in her body and fraudulently concealed the cause of action. We affirm.
This Court reviews a trial court's ruling on a summary disposition motion de novo. DiPonio Construction Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 46; 631 NW2d 59 (2001). In determining whether a party is entitled to judgment as a matter of law under MCR 2.116(C)(7), a court must accept as true a plaintiff's well-pleaded factual allegations, affidavits, or other documentary evidence and construe them in plaintiff's favor. Brennan v Edward D Jones & Co, 245 Mich App 156, 157; 626 NW2d 917 (2001); Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 77; 592 NW2d 112 (1999). Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, whether the statute of limitations bars the claim is a question of law reviewed de novo. Id.
In general, the statute of limitations for a medical malpractice claim is two years from the time the claim accrued. MCL 600.5805(5). But if the injury is not discovered within two years, MCL 600.5838a(2) - a statute of repose - allows a plaintiff to bring a claim for a maximum period of six years, although within that time frame, the claim must be brought within six months from when the injury is discovered or should have been discovered. MCL 600.5838a(2).
Additionally, the previous version of MCL 600.5838a(2) applies to plaintiffs' claim. See 1993 PA 178. That subsection contained a foreign-body exception that permitted claims to be brought past the statute of repose " f a foreign object was wrongfully left in body of the patient." MCL 600.5838(2)(b). However, the suit still had to be commenced within six months of when the injury was or should have been discovered, unless MCL 600.5805 or 600.5851-5856 applied. MCL 600.5838(3).
Of these exceptions, MCL 600.5855 would apply if plaintiffs' fraudulent concealment claim is valid. In cases of fraudulent concealment, a plaintiff has two years from the time the claim is discovered or should have been discovered to file suit. Id.
To invoke the fraudulent concealment exception, defendants must have fraudulently concealed the fact that plaintiff had a cause of action. Eschenbacher v Hier, 363 Mich 676, 681; 110 NW2d 731 (1961). Plaintiffs sufficiently alleged specific acts or misrepresentations that amounted to fraudulent concealment in their complaint. See Sills v Oakland General Hosp, 220 Mich App 303, 310; 559 NW2d 348 (1996).
Fraudulent concealment is defined as follows:
"Fraudulent concealment means employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action. The acts relied on must be of an affirmative character and fraudulent." [Dunmore v Babaoff, 149 Mich App 140, 145; 386 NW2d 154 (1985), quoting DeHaan v Winter, 258 Mich 293, 296; 241 NW 923 (1932).]
" ere silence is not enough" to establish fraudulent concealment. Id. at 145-146. "A fraudulent concealment claim cannot be established unless the plaintiff proves some affirmative act or misrepresentation on the part of the defendant which is designed to prevent subsequent discovery." Id. at 146.
However, in cases where a defendant owes the plaintiff a fiduciary duty, a higher standard exists, and this Court will closely examine the facts to determine whether the doctor mad
Page 1 2 3 Michigan Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|