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Stenger v. Genesys Regional Medical Center9/27/2005
UNPUBLISHED
Before: Fitzgerald, P.J., and Cooper and Kelly, JJ.
In this medical malpractice action, plaintiff Catherine Stenger appeals as of right the trial court's order granting defendant Genesys Regional Medical Center's motion for summary disposition pursuant to MCR 2.116(C)(7), MCR 2.116(C)(8), and MCR 2.116(C)(10). We affirm.
I. Facts and Procedural History
On March 31, 2000, plaintiff, who was then forty-three years old, visited the office of Dr. Alexander Austria, a resident with defendant medical center, for a comprehensive physical examination. At that appointment, a mammogram was scheduled for plaintiff for April 17, 2000. Plaintiff was also advised to return in two weeks for a Pap smear and follow-up visit. Before the mammogram, a nurse employed by defendant contacted plaintiff about the missing results of a mammogram performed in 1986. Plaintiff and the nurse both attempted to locate the mammogram before plaintiff rescheduled her appointment for September of 2000. Plaintiff never returned to defendant's facility for her follow-up appointment and Pap smear and cancelled her September mammogram for personal reasons without rescheduling it. Plaintiff did not visit a doctor again until February of 2002, when she visited an emergency room with a "blister" on her left breast and pain in her left side. Plaintiff was thereafter diagnosed with breast cancer and underwent chemotherapy sessions in the summer of 2002.
Plaintiff filed her complaint on March 6, 2003, alleging that Dr. Austria's failure to order a mammogram precluded an earlier diagnosis. Specifically, plaintiff alleged that she suffered diminished life expectancy, probable loss of life, denial of a cure, pain and suffering, emotional anxiety, and denial of social pleasure and enjoyment as a result of this negligence. Following discovery, plaintiff filed an amended complaint on January 12, 2005, asserting that Dr. Austria breached his standard of care by failing to follow up with her regarding the mammogram. The trial court subsequently granted defendant's motion for summary disposition of plaintiff's claims. The court found that plaintiff failed to raise an issue of material fact that Dr. Austria failed to order a mammogram, and that her claim that Dr. Austria failed to follow up was untimely and failed to create an issue of fact. Additionally, the court ruled that the complaint alleged only speculative future damages of loss of an opportunity to survive.
II. Failure to Order Mammogram
Plaintiff first contends that the trial court improperly dismissed her claim that Dr. Austria was negligent for failing to order a mammogram pursuant to MCR 2.116(C)(10). We review a trial court's determination regarding a motion for summary disposition de novo. A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. "In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence submitted in light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists." Summary disposition is appropriate only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.
Plaintiff contends that Dr. Austria did not "order" her mammogram because she requested the test on her own initiative. Even taking that allegation as true, the record evidence clearly reveals that Dr. Austria ordered the mammogram. Dr. Austria noted in plaintiff's medical chart that she was to have a mammogram performed in two weeks. He instructed his office staff to schedule the
Page 1 2 Michigan Personal Injury Attorneys
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