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Rucker v. Barnes5/13/2005
NOT TO BE PUBLISHED
OPINION AND ORDER
DISMISSING APPEAL
BEFORE: BARBER AND VANMETER, JUDGES; HUDDLESTON, SENIOR JUDGE.
Donald Rucker filed this medical malpractice action after he was informed that he tested positive for Hepatitis C. Rucker contends that the trial court erred in granting summary judgment in favor of Dr. William E. Barnes (Barnes) and Livingston County Hospital (LCH), and by dismissing his claims on behalf of his children. Having determined that Rucker's notice of appeal was untimely filed, we must dismiss this appeal.
In 1989 Rucker received forty-two units of blood during the treatment of a gunshot wound. In 1992 he was admitted to LCH complaining of abdominal pain. Barnes consulted with the patient and tests were performed. One of those tests, which screened Rucker for the presence of anti-HVC indicated that Rucker may have been exposed to Hepatitis C. More specifically the report stated:
A repeated reactive result may not necessarily constitute a diagnosis of Hepatitis C (non A, non B Hepatitis - NANBH) or indicate the presence of anti-body to Hepatitis C virus. If reactive, it is suggested that a supplemental assay...be ordered on this patient to obtain stronger evidence of the presence of anti-HCV. The supplemental assay is for research use only.
However, the test results were not disclosed to Rucker, and Barnes asserts that he was not notified of the results. No supplemental tests were ordered, and Barnes contends that Rucker never requested the results of his tests.
In 1997 Rucker discovered that he had been exposed to Hepatitis C. In 1999 Rucker, who still had not undergone any treatment for Hepatitis C, filed a complaint against Barnes and LCH on behalf of both himself and his three children. In July 2000 the court granted appellee LCH's motion to dismiss the children as parties due to the failure to state a viable cause of action. In September 2000 the trial court entered a non-final order granting summary judgment on behalf of LCH, finding that because Rucker had signed a consent form acknowledging that Barnes was not a hospital employee ostensible agent liability did not exist. The court rejected Rucker's contention that the hospital had a duty to disclose the test results, instead concluding that LCH was entitled to judgment as a matter of law.
On December 17, 2002, the trial court entered a final and appealable order granting summary judgment in favor of Barnes and dismissing the action. The court found that regardless of whether Barnes was aware of Rucker's test results and whether Rucker was ever informed of those results Rucker was not harmed by any such negligence and was not entitled to damages since there was no evidence that the doctor's failure to inform him of his condition resulted in deterioration to his liver or health.
Rucker filed a timely motion to alter, amend, or vacate the December 17 order. On February 7, while the motion to alter, amend, or vacate was still pending, Rucker filed an addendum seeking to include an expert witness' affidavit regarding his damages. On February 10 the trial court entered an order denying Rucker's motion to alter, and on February 21 the court entered an amended order correcting a typographical error in the February 10 order. Rucker filed his notice of appeal on March 19, 2003.
Pursuant to CR 73.02(1)(a), " he notice of appeal shall be filed within 30 days after the date of notation of service of the judgment or order under Rule 77.04(2)." Failure to timely file "shall result in a dismissal."
The circuit court's order granting summary judgment in favor of Barnes and dismissi
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