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Kruschke v. Lovell11/3/2005
UNPUBLISHED
Before: O'Connell, P.J., and Sawyer and Murphy, JJ.
Plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendants under MCR 2.116(C)(7) in this medical malpractice case in which plaintiff's cause of action is predicated on a claim that defendant Lovell performed a medically unnecessary hysterectomy in April 1998. Defendants successfully argued below that summary dismissal was proper on the basis that the claim was time-barred. The trial court rejected plaintiff's argument that she could not have reasonably discovered her claim for medical malpractice until the fall of 2002, at which time she was informed by another doctor, quite emphatically, that the hysterectomy was medically unnecessary and constituted an inappropriate surgery under acceptable medical standards. We reverse and remand.
Plaintiff saw Dr. Lovell on April 17, 1998, in the emergency room at Marquette General Hospital. She went to the emergency room because she was suffering from lower abdominal pain. Plaintiff was treated by Lovell while in the emergency room, and she was admitted into the hospital later that evening. Plaintiff testified that she had surgery the following morning. She recalled Lovell telling her that he was going to do a laparoscopy and that he was concerned about a chocolate cyst.
Dr. Lovell testified that he saw plaintiff in the emergency room and that his physician's assistant had informed him that plaintiff had an abnormal ultrasound. Lovell maintained that he discussed the topic of surgery with plaintiff, including the possibility of a complete hysterectomy, depending on the findings during the laparoscopy. In performing the laparoscopy, Lovell found what he classified as a "huge" cyst on plaintiff's left ovary; it was eight or nine centimeters in diameter. The area was "very extensively involved with endometriosis," and Lovell noted that plaintiff's right ovary was also "very extensively involved superficially with endometriosis." Lovell testified that he could have removed the cyst without performing a laparotomy, but he felt that it would not have been safe to so proceed.
Dr. Lovell then removed plaintiff's left and right fallopian tubes and ovaries, uterus, and cervix. Lovell indicated that once he looked inside the cyst, he was not concerned with malignant growth. However, he could not send a frozen section of the cyst to the lab because it ruptured as he was removing it. Lovell testified that the left ovary and fallopian tube had been involved with the cyst and endometriosis, and, therefore, he felt it was appropriate to remove them. Lovell also stated that, although the uterus and cervix were normal, it was general procedure to perform a total hysterectomy and remove both. He did record in his operative notes that plaintiff indicated in one of her first visits with his office a wish for sterilization. Lovell also admitted, however, that plaintiff indicated on her surgical consent form that she did not wish to have a total hysterectomy if possible. The doctor testified that he removed plaintiff's ovaries, fallopian tubes, uterus, and cervix because they were "involved" with endometriosis beyond repair and that the best course of action was to remove the diseased tissue.
Plaintiff testified that she remembered waking up after the surgery with pain in her stomach, and she noticed that her stomach was heavily bandaged. Plaintiff also stated that she knew that Dr. Lovell came in to talk with her after the surgery, but she could not remember the nature of the conversation. She admitted that she left the hospital after the surgery "under the impression that they had taken both ovaries and uterus
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