Dunmore v. Babaoff , 149 Mich. App. 140 ( 1985 )

149 Mich. App. 140 (1985) 386 N.W.2d 154

DUNMORE
v.
BABAOFF

Docket No. 79787.

Michigan Court of Appeals.

Decided December 9, 1985.

William E. Wade, for plaintiff.

Plunckett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by Robert G. Kamenec), for defendant Babaoff.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by Susan Healy Zitterman), for defendant Sinai Hospital.

Before: BEASLEY, P.J., and V.J. BRENNAN and CYNAR, JJ.

PER CURIAM.

Plaintiff filed a complaint in Wayne County Circuit Court on December 20, 1982, against defendants Dr. Babaoff and Sinai Hospital, alleging medical malpractice based upon Dr. Babaoff's performing an abortion upon plaintiff without her consent. The abortion was performed at Sinai Hospital. Plaintiff's complaint also alleged that Dr. Babaoff had fraudulently concealed from her the fact that she was pregnant, that he had performed an abortion and that he had not performed a complete salpinectomy.

Following a hearing on July 20, 1984, defendants were granted summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C), as to plaintiff's fraudulent concealment claim and accelerated judgment pursuant to GCR 1963, 116.1(5), now MCR 2.116(C), with respect to plaintiff's allegations of medical malpractice based on a running of the applicable period of limitations. MCL 600.5838; MSA 27A.5838. Plaintiff appeals as of right, claiming that the trial court erroneously granted defendants' motion for summary judgment.

On August 29, 1979, Dr. Babaoff performed surgery, a laparoscopy, a D & C (dilation and curettage) and tubal ligation, on plaintiff. During the course of the surgery, while plaintiff was under general anesthesia, Dr. Babaoff discovered that there was a possibility that plaintiff was pregnant. Medical records indicate that Dr. Babaoff performed a suction curettage, which brought forth some "natural grossly looking like embrial [sic] tissue". Dr. Babaoff then continued with the scheduled procedures. Plaintiff was under general anesthesia at the time and was not informed of Dr. Babaoff's discovery or that he had performed an abortion.

Plaintiff's deposition testimony indicates that she visited with Dr. Babaoff for a post-operative checkup about three or four weeks after the August 29, 1979, procedure. Plaintiff admits that, during the checkup, Dr. Babaoff informed her that at the time of the procedure her uterus was slightly enlarged and that there was a possibility that she may have been pregnant at that time. Dr. Babaoff also informed plaintiff that he would not be able to verify the fact that she was pregnant until he received the lab reports. Plaintiff informed Dr. Babaoff that she did not believe that she was pregnant and made no further inquiries about the pregnancy. Dr. Babaoff apparently never informed the plaintiff of the findings of the lab reports.

Plaintiff took no further action relative to this case until May, 1982. At that time, plaintiff specifically requested a copy of her medical records from Sinai Hospital so that she could verify a statement made by another doctor concerning the presence of a tumor in her uterus. After reviewing the records, plaintiff realized that she had been pregnant at the time the August, 1979, procedure was performed. At that point, plaintiff took the records to an attorney who filed a complaint on her behalf against defendants alleging medical malpractice and fraudulent concealment of the fact that plaintiff was pregnant and that Dr. Babaoff had performed an abortion without plaintiff's consent.

The trial court found that defendants were entitled to accelerated judgment pursuant to GCR 1963, 116.2(5), now MCR 2.116(C)(7), because plaintiff's complaint was filed more than six months after plaintiff had discovered or should have discovered the existence of her claim and thus fell within the provisions of the applicable statute of limitations, MCL 600.5838; MSA 27A.5838. On appeal, plaintiff does not challenge the trial court's ruling on the medical malpractice claim.

The trial court also found that plaintiff had failed to demonstrate a genuine issue of material fact which would support a claim for fraudulent concealment. The court ruled that defendants were entitled to summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), on the fraudulent concealment claim because the undisputed facts established that Dr. Babaoff had advised plaintiff that she may have been pregnant and thus there was no affirmative act of concealment to support the claim. The court also found that plaintiff's proposed amendment to the complaint would be futile under the facts of this case and denied plaintiff's motion to amend.

Plaintiff argues that the trial court erred in ruling that defendants were entitled to summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), on the fraudulent concealment claim. Plaintiff asserts that there were numerous issues of fact relative to her fraudulent concealment claim. We disagree.

A motion for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), has the limited function of determining whether material issues of fact exist. Goldman v Loubella Extendables, 91 Mich. App. 212, 217; 283 NW2d 695 (1979), lv den 407 Mich. 901 (1979). The motion should not be granted unless it is impossible for the opposing party to support his or her claim or defense because of some deficiency which cannot be overcome.

A claim of fraudulent concealment cannot postpone the running of the statutory period of limitation unless the fraud is manifested by an affirmative act or misrepresentation. Lumber Village, Inc v Siegler, 135 Mich. App. 685; 355 NW2d 654 (1984). In Buszek v Harper Hospital, 116 Mich. App. 650, 654; 323 NW2d 325 (1982), a medical malpractice case involving fraudulent concealment, we quoted from Delta v Winter, 258 Mich. 293, 296; 241 N.W. 923 (1932), 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."

The Court also stated that mere silence is not enough. 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.

In this case plaintiffs deposition testimony indicates that there was no affirmative act or misrepresentation on the part of Dr. Babaoff which could form the basis of a fraudulent concealment claim. As early as September, 1979, Dr. Babaoff informed plaintiff that she may have been pregnant in August, 1979, when she underwent surgery. Also, Dr. Babaoff informed plaintiff that a D & C had been performed which should have indicated to plaintiff that, if she had been pregnant, the fetus would have aborted. It is clear from our review of the record that Dr. Babaoff did nothing to mislead or hinder the plaintiff's acquisition of information which would disclose a cause of action. See Sheldon v Sisters of Mercy Health Corp, 102 Mich. App. 91, 94; 300 NW2d 746 (1980). We conclude that the trial court properly granted defendants' motion for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10).

Plaintiff further contends that the trial court erred in ruling that plaintiff's complaint was insufficient to state a claim for fraudulent concealment, GCR 1963, 117.2(1), now MCR 2.116(C)(8), and in denying plaintiff the opportunity to amend the complaint.

Where a plaintiff seeks to toll the running of the statutory period of limitation by invoking the doctrine of fraudulent concealment, the acts or misrepresentations constituting fraudulent concealment must be pled in the complaint. Arent v Hatch, 133 Mich. App. 700, 706; 349 NW2d 536 (1984), lv den 419 Mich. 939 (1984). In order to properly plead a claim for fraudulent concealment in a malpractice action, the plaintiff must specifically set forth the acts or misrepresentations by the defendant which demonstrate a plan or scheme which was designed to prevent inquiry or escape investigation of a potential claim by the plaintiff. Buchanan v Kull, 323 Mich. 381, 388; 35 NW2d 351 (1949); Tonegatto v Budak, 112 Mich. App. 575, 584; 316 NW2d 262 (1982). In this case, plaintiff merely alleged in conclusory terms that Dr. Babaoff fraudulently concealed the facts necessary for her claim. Plaintiff did not allege the factual circumstances upon which the claim of fraudulent concealment was premised. Therefore, the trial court correctly ruled that plaintiff failed to state a fraudulent concealment claim.

Plaintiff further contends that, even if her complaint was incomplete, she should have been permitted to amend her complaint to allege the necessary facts. GCR 1963, 118.1, now MCR 2.118(A), provides that motions to amend must be "freely given when justice so requires". A denial of such a motion, although discretionary, must be supported by specific findings as to why justice would not be served by the amendment. Ben P Fyke & Sons v Gunter Co, 390 Mich. 649; 213 NW2d 134 (1973). In this case, no abuse of discretion exists. The trial court expressly determined that any amendment to the complaint would be futile given the undisputed facts. The trial court specifically found that, because Dr. Babaoff actually informed plaintiff that she may have been pregnant, plaintiff could not establish the necessary factual prerequisite for a fraudulent concealment claim. Plaintiff's brief on appeal fails to state any facts which support plaintiff's claim that the trial court's ruling is erroneous.

Affirmed.