                      STATE OF MICHIGAN

                         COURT OF APPEALS



HANNAH RAYBA, f/k/a HANNAH BUGAISKI,      UNPUBLISHED
                                          January 22, 2015
           Plaintiff-Appellant,

v                                         No. 317346
                                          St. Clair Circuit Court
STEVEN SMOLINSKI, M.D., RIVER DISTRICT    LC No. 12-001845-NH
WOMEN’S HEALTH, ST. JOHN RIVER
DISTRICT HOSPITAL, ST. JOHN HEALTH,
MICHAEL PAUL, M.D. and DR. NANCY
LABRADOR, M.D.,

           Defendants,

and

PHYSICIANS HEALTHCARE NETWORK, P.C.
and PORT HURON HOSPITAL,

           Defendants-Appellees.


HANNAH RAYBA, f/k/a HANNAH BUGAISKI,

           Plaintiff-Appellee,

v                                         No. 318228
                                          St. Clair Circuit Court
STEVEN SMOLINSKI, M.D., RIVER DISTRICT    LC No. 12-001845-NH
WOMEN’S HEALTH, ST. JOHN RIVER
DISTRICT HOSPITAL, and ST. JOHN HEALTH,

           Defendants-Appellees,

and

MICHAEL PAUL, M.D., PORT HURON
HOSPITAL and DR. NANCY LABRADOR,
M.D.,


                                   -1-
               Defendants,

PHYSICIANS HEALTHCARE NETWORK, P.C.,

               Defendant-Appellant.


HANNAH RAYBA, f/k/a HANNAH BUGAISKI,

               Plaintiff-Appellant,

v                                                                    No. 321323
                                                                     St. Clair Circuit Court
STEVEN SMOLINSKI, M.D., RIVER DISTRICT                               LC No. 12-001845-NH
WOMEN’S HEALTH, ST. JOHN RIVER
DISTRICT HOSPITAL, ST. JOHN HEALTH,
DR. MICHAEL PAUL, M.D.,

               Defendants,

and

PHYSICIANS HEALTHCARE NETWORK, P.C.,
PORT HURON HOSPITAL, and DR. NANCY
LABRADOR, M.D.,

               Defendants-Appellees.


Before: FORT HOOD, P.J., and HOEKSTRA and O’CONNELL, JJ.

PER CURIAM.

        In Docket No. 317346, plaintiff appeals by leave granted the trial court’s orders granting
summary disposition in favor of defendants Physicians Healthcare Network, P.C. (“Physicians
Network”), and Port Huron Hospital, pursuant to MCR 2.116(C)(10). In Docket No. 318228,
Physicians Network appeals by leave granted the trial court’s order granting defendants Steven
Smolinski, River District Women’s Health, St. John River District Hospital, and St. John
Health’s motion for leave to file a notice of non-party fault naming Dr. Nancy Labrador. In
Docket No. 321323, plaintiff appeals as of right the trial court’s order granting summary
disposition in favor of Dr. Labrador. Because the trial court properly granted summary
disposition to Dr. Labrador based on the expiration of the applicable statute of limitations, we
affirm in Docket No. 321323. The grant of summary disposition to Dr. Labrador served as an
adjudication on the merits in relation to plaintiff’s claims against Dr. Labrador, meaning that Port
Huron Hospital and Physicians Network may not be held vicariously liable for Dr. Labrador’s
acts and omissions, and thus we also affirm the grant of summary disposition in Docket No.
321323. Finally, we dismiss the appeal in Docket No. 318228 because it is moot.
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                                I. FACTS AND PROCEEDINGS

        Dr. Smolinski performed surgery on plaintiff on April 28, 2010. Plaintiff alleges that Dr.
Smolinski inadvertently perforated her rectum during the surgery, and failed to recognize or
repair this injury. Plaintiff presented at the Port Huron Hospital Emergency Room on May 1,
2010, with abdominal pain consistent with a perforated rectum, but her treating physician failed
to make the proper diagnosis. Although hospital records identified plaintiff’s attending
physician in the emergency room as Dr. Michael Paul, plaintiff acknowledged at her deposition
that she had not been seen by Dr. Paul, with whom she was acquainted, and Dr. Paul denied
treating plaintiff. Instead, plaintiff was treated by Dr. Labrador, a resident at another hospital
who had been “moonlighting” at Port Huron Hospital on May 1, 2010.

        On June 15, 2011, plaintiff sent a notice of intent to Dr. Labrador, Dr. Paul, Port Huron
Hospital, Physicians Network1 as well as Dr. Smolinski and his related entities, i.e., River
District Women’s Health, St. John River District Hospital, and St. John Health (collectively
referred to as the “Smolinski defendants”). In relation to her visit to the emergency room, her
notice of intent specifically asserted that there had been breaches of the applicable standard of
care by both Dr. Labrador and Dr. Paul.

       Thereafter, on April 30, 2012, plaintiff filed this malpractice action against the Smolinski
defendants as well as Dr. Paul and his affiliated entities, i.e., Port Huron Hospital and Physicians
Network. Notably, although Dr. Labrador had been named in plaintiff’s notice of intent, plaintiff
did not name Dr. Labrador as a defendant, nor did she specifically allege that Port Huron
Hospital or Physicians Network were vicariously liable for any alleged malpractice by Dr.
Labrador. Instead, plaintiff’s complaint specifically alleged negligence by Dr. Paul, and asserted
claims of vicarious liability against Port Huron Hospital and Physicians Network for “the acts or
omissions of its employees, servants, agents actual or ostensible, including, but not limited to”
Dr. Paul.2

        The trial court granted summary disposition to Dr. Paul, Port Huron Hospital, and
Physicians Network pursuant to MCR 2.116(C)(10) on the ground that there was no genuine
issue of material fact that Dr. Paul did not provide any medical care for plaintiff and that
consequently Port Huron Hospital and Physicians Network could not be held vicariously liable.
Plaintiff appeals that order by leave granted in Docket No. 317346.




1
 Physicians Network is a practice group whose physicians staffed the Port Huron Hospital
Emergency Room.
2
  Plaintiff’s complaint also alleged that Port Huron and Physicians Network could be held
directly liable for their negligence in hiring, training, and monitoring its employees and agents.
On appeal, however, plaintiff does not challenge the dismissal of these direct liability claims.
Thus, we consider her claims of direct liability in relation to Port Huron and Physicians Network
to be abandoned. See Ruff v Isaac, 226 Mich App 1, 6; 573 NW2d 55 (1997).


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        After the trial court granted summary disposition to Port Huron Hospital and Physicians
Network, Dr. Labrador was added as a defendant to the case. Specifically, in July 2013, the trial
court first granted the Smolinski defendants leave to file notice of non-party fault regarding Dr.
Labrador under MCR 2.112(K). Physicians Network opposed the trial court’s decision in this
regard and now appeals that order by leave granted in Docket No. 318228. Plaintiff, in contrast,
did not oppose the Smolinski defendants’ motion to file notice of non-party fault. After the
Smolinski defendants filed their notice of non-party fault, the trial court then also granted
plaintiff’s motion for leave to file an amended complaint adding Dr. Labrador to the suit.
Plaintiff thereafter filed an amended complaint naming Dr. Labrador as a defendant.

       Dr. Labrador subsequently moved for summary disposition, which the trial court granted
based on the statute of limitations. Plaintiff appeals the grant of summary disposition to Dr.
Labrador as of right in Docket No. 321323. The three cases have been consolidated on appeal.

                                    II. DOCKET NO. 321323

       Plaintiff previously acknowledged that Dr. Paul did not treat her at the emergency room
and instead plaintiff’s general theory of the case has become that Dr. Labrador provided
negligent treatment, making Dr. Labrador directly liable and Port Huron Hospital and Physicians
Network vicariously liable for Dr. Labrador’s negligent conduct. We begin our analysis on
appeal by considering the propriety of the trial court’s grant of summary disposition to Dr.
Labrador in Docket No. 321323 because we find this issue to be dispositive of plaintiff’s
arguments on appeal. In particular, an adjudication on the merits of medical malpractice claims
against a physician, including dismissal based on the expiration of the period of limitations,
precludes a patient from pursuing claims of vicarious liability against medical entities based on
the physician’s acts of negligence. Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 294-297; 731
NW2d 29 (2007). Consequently, if plaintiff’s claims against Dr. Labrador were properly
dismissed based on the expiration of the statute of limitations, it follows that she may not pursue
claims of vicarious liability against Port Huron Hospital and Physicians Network premised on
Dr. Labrador’s negligence and that these entities, as well as Dr. Labrador, are entitled to
summary disposition.

        On appeal, plaintiff does not dispute that the applicable statute of limitations had expired
at that time she amended her complaint to add Dr. Labrador as a defendant. Rather, plaintiff
asserts that her amendment to include Dr. Labrador was timely because Dr. Labrador had been
named as a non-party at fault by the Smolinski defendants pursuant to MCR 2.112(K). Given the
Smolinski defendants’ notice pursuant to MCR 2.112(K)(3)(c), plaintiff maintains that she could
add Dr. Labrador to the suit under MCL 600.2957(2) without violating the statute of limitations.

       We review de novo the trial court’s grant of summary disposition. Hofman v Boonsiri,
290 Mich App 34, 39; 801 NW2d 385 (2010). Under MCR 2.116(C)(7), summary disposition is
appropriate when a claim is barred by the statute of limitations. “When reviewing a motion
under MCR 2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and
construe them in favor of the plaintiff, unless other evidence contradicts them.” Dextrom v
Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). When the facts are not in dispute,
whether a cause of action is time barred by the applicable statute of limitations presents a
question of law which this Court reviews de novo. Trentadue v Buckler Lawn Sprinkler, 479

                                                -4-
Mich 378, 386; 738 NW2d 664 (2007). Issues involving the interpretation and application of
court rules and statutes are also reviewed de novo. In re Sanders, 495 Mich 394, 404; 852
NW2d 524 (2014).

         “The period of limitations for a medical malpractice action is ordinarily two years, MCL
600.5805(6), from ‘the time of the act or omission that is the basis for the claim of medical
malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the
claim,’ MCL 600.5838a(1).” Sanders v Perfecting Church, 303 Mich App 1, 9-10; 840 NW2d
401 (2013). However, pursuant to MCL 600.2957(2), following the identification of a non-party
at fault, within 91 days, a plaintiff may move to amend his or her complaint to include the non-
party and such amendment relates back to the originally filed complaint, meaning that a
plaintiff’s claims against the nonparty are not barred by the limitations period provided that the
limitations period had not expired by the time the original action was filed. In particular, MCL
600.2957(2), states:

        Upon motion of a party within 91 days after identification of a nonparty, the court
        shall grant leave to the moving party to file and serve an amended pleading
        alleging 1 or more causes of action against that nonparty. A cause of action added
        under this subsection is not barred by a period of limitation unless the cause of
        action would have been barred by a period of limitation at the time of the filing of
        the original action.

        For MCL 600.2957(2) to apply, however, there must first be notice of a non-party at fault
in compliance with MCR 2.112(K). Bint v Doe, 274 Mich App 232, 235; 732 NW2d 156 (2007).
Specifically, MCR 2.112(K) is a procedural rule designed to implement MCL 600.2957. Id. at
157-158. It “creates an orderly method for adding new parties that takes into account the need
for a reasonable time frame for identification of the parties and the right to not be unfairly
prejudiced as a result of the parties’ failure to act diligently in the pursuit of their claims.” Staff v
Johnson, 242 Mich App 521, 532; 619 NW2d 57 (2000). When the parties have not complied
with MCR 2.112(K), a plaintiff may not rely on MCL 600.2957(2) as an unlimited extension to
add additional defendants after the expiration of the statute of limitations. Id. at 532-534. See
also Bint, 274 Mich App at 235.

        Relevant to resolution of the present dispute, to comply with MCR 2.112(K):

        The notice must be filed within 91 days after the party files its first responsive
        pleading. On motion, the court shall allow a later filing of the notice on a
        showing that the facts on which the notice is based were not and could not with
        reasonable diligence have been known to the moving party earlier, provided that
        the late filing of the notice does not result in unfair prejudice to the opposing
        party. [MCR 2.112(K)(3)(c)].

Under this provision, after 91 days of a party’s first responsive pleading, a trial court errs in
allowing late notice of non-party fault without a showing by the party that the facts underlying
the late notice were not, and could not with reasonable diligence have been, known earlier. See
Snyder v Advantage Health Physicians, 281 Mich App 493, 501-505; 760 NW2d 834 (2008).
After a plaintiff has been served with a notice under MCR 2.112(K), the plaintiff “may file an

                                                  -5-
amended pleading stating a claim or claims against the nonparty within 91 days of service of the
first notice identifying that nonparty.” MCR 2.112(K)(4). In addition, under MCR 2.112(K)(4),
the trial court “may permit later amendment as provided in MCR 2.118.” In turn, MCR
2.118(A)(2) allows a party to amend a pleading upon leave of the court, and “[l]eave shall be
freely given when justice so requires.”

        In this case, the Smolinski defendants were the parties serving notice of non-party fault
under MCR 2.112(K)(3)(c), and plaintiff now seeks to use that notice as a basis for invoking
MCL 600.2957(2). Because the Smolinski defendants delayed more than 91 days in filing the
required notice,3 they could move to file delayed notice, but were entitled to file such notice only
upon a showing that “the facts on which the notice is based were not and could not with
reasonable diligence have been known to the moving party earlier” and the late filing did not
unfairly prejudice the opposing party. MCR 2.112(K)(3)(c); Snyder, 281 Mich App at 501-502.

        Initially, the trial court granted the Smolinski defendant’s unopposed motion to file late
notice of non-party fault because the Smolinski defendants maintained they had not known of
Dr. Labrador’s involvement until March of 2013 when Dr. Paul was deposed. The trial court
later repudiated its earlier decision to grant this motion, however, when it became apparent to the
trial court that the Smolinski defendants, as well as plaintiff, had long had knowledge of Dr.
Labrador’s role and nonetheless failed to include her in the suit. Specifically, the trial court
explained:

       The evidence below shows a lack of diligence amongst the parties in this case.

              First, on June 15, 2011, Plaintiff filed her notice of intent to file a medical
       malpractice claim and Dr. Labrador was named in the notice.

               Second, on May 15, 2012, Plaintiff sent a letter to Defense Counsel stating
       “[p]lease be advised that Dr. Nancy Labrador was not named in the Complaint.”

               Third, on August 1, 2012, Dr. Michael Paul filed his Affidavit of Non-
       Involvement that stated he did not treat Plaintiff and that it was Dr. Labrador that
       treated Plaintiff on May 1, 2010.

             Fourth, on August 8, 2012, Defense Counsel sent a letter to Plaintiff’s
       Counsel confirming that Plaintiff had not named Dr. Labrador[.]

               Lastly, during Plaintiff’s deposition on August 23, 2012, Plaintiff testified
       that she recalled seeing Dr. Labrador and that she was a woman [whereas Dr. Paul
       was a man].




3
 The Smolinski defendants filed their answer in June 2012, and the Smolinski defendants did not
seek leave to file a notice of non-party fault until July 5, 2013.


                                                -6-
Despite these obvious indications of Dr. Labrador’s involvement, the Smolinski defendants did
not seek leave to give notice that Dr. Labrador was a non-party at fault until July 5, 2013. From
these uncontroverted facts, the trial court concluded that the “parties knew in advance the facts
and with reasonable diligence knew Dr. Labrador was involved in the care of plaintiff at the
onset of this case.” Given this conclusion, the trial court specified that it had been error to grant
the Smolinski defendants’ motion to file a late notice of non-party fault and that the unopposed
motion would not have been granted had the trial court been presented with the relevant
information regarding the parties’ knowledge of Dr. Labrador’s involvement.

        In other words, the trial court correctly determined that, contrary to its earlier ruling, the
Smolinski defendants were not in fact entitled to file delayed notice of non-party fault under
MCR 2.112(K)(3)(c) because the facts of Dr. Labrador’s potential liability were known, and had
long been known, to the Smolinski defendants. Cf. Snyder, 281 Mich App at 501-505. The
notice provided by the Smolinski defendants thus failed to comply with the requirements of
MCR 2.112(K)(3)(c), and plaintiff could not use their improper notice as a basis for amending
her complaint and invoking MCL 600.2957(2). See Staff, 242 Mich App at 533-535; cf. Bint,
274 Mich App at 235-236 (concluding the plaintiffs could properly amend their complaint to add
a party where the defendant complied with the notice requirements pertaining to non-party fault).

        In opposition to this conclusion, plaintiff contends the trial court could not find the
Smolinski defendants’ notice failed to comply with MCR 2.112(K) because the trial court had
itself granted the Smolinski defendants’ motion to file the notice in question. This argument
lacks merit because, under the court rules, the trial court had “explicit procedural authority to
revisit an order while the proceedings are still pending and, on that reconsideration, to determine
that the original order was mistaken, as the trial court did here.” Hill v City of Warren, 276 Mich
App 299, 307; 740 NW2d 706 (2007). See also MCR 2.604(A). Thus, on the facts of this case,
despite its original decision to grant the Smolinski defendants’ motion, the trial court did not err
in concluding, based on the evidence presented, that the Smolinski defendants were not entitled
to file a delayed notice of non-party fault under MCR 2.112(K)(3)(c) because they had long
known of Dr. Labrador’s involvement in plaintiff’s treatment.

       In sum, the Smolinski defendants’ notice of Dr. Labrador’s non-party fault was invalid,
meaning that plaintiff could not rely on this notice to make use of the extension provision under
MCL 600.2957(2). Because the applicable period of limitations had expired, MCL 600.5805(6),
Dr. Labrador was thus entitled to summary disposition pursuant to MCR 2.116(C)(7).4 For these
reasons, we affirm the trial court’s order granting summary disposition in favor of Dr. Labrador.



4
  Plaintiff also argues on appeal that her efforts to add Dr. Labrador were timely because there
was “falsification” of her emergency room records that constituted fraudulent concealment of Dr.
Labrador’s identity, entitling plaintiff to invoke MCL 600.5855, which provides that, in cases
where a claim or a wrongdoer’s identity is fraudulently concealed, an action “may be
commenced at any time within 2 years after the person who is entitled to bring the action
discovers . . . the existence of . . . the identity of the person who liable for the claim, although the
action would otherwise be barred by the period of limitations.” Plaintiff’s reliance on this

                                                  -7-
                                   III. DOCKET NO. 317346

        Given our conclusion that Dr. Labrador was entitled to summary disposition based on the
expiration of the applicable statute of limitations, we also conclude that Port Huron Hospital and
Physicians Network are entitled to summary disposition.5 That is, as noted, an adjudication on
the merits of medical malpractice claims against a physician precludes a patient from pursuing
claims of vicarious liability against medical entities based on the physician’s acts of negligence.
Al-Shimmari, 477 Mich at 294-297. Dismissal of an untimely complaint based on the expiration
of the period of limitation constitutes an adjudication on the merits. Verbrugghe v Select
Specialty Hosp-Macomb Co, Inc, 279 Mich App 741, 744; 760 NW2d 583 (2008). Because, at
this time, there has been an adjudication on the merits pertaining to Dr. Labrador’s liability, it
follows that plaintiff may not pursue claims against Port Huron Hospital and Physicians Network
premised on a theory of vicarious liability arising from Dr. Labrador’s purported wrongdoing.
See Al-Shimmari, 477 Mich at 294-297. Aside from Dr. Labrador, plaintiff concedes that Dr.
Paul was not her treating physician and she identifies no other actor for whose negligence Port
Huron Hospital and Physicians Network should be held vicariously liable. Consequently, Port
Huron Hospital and Physicians Network are entitled to summary disposition.

       We note that, when the trial court granted summary disposition to Port Huron Hospital
and Physicians Network, there had not yet been an adjudication of Dr. Labrador’s liability. On
appeal, plaintiff argues that this fact distinguishes the present case from Al-Shimmari.
Specifically, plaintiff maintains that because summary disposition had been granted to Port
Huron Hospital and Physicians Network before summary disposition was granted to Dr.
Labrador, the subsequent grant of summary disposition to Dr. Labrador cannot make proper the
dismissal of Port Huron Hospital and Physicians Network.

        Clearly, given that Port Huron Hospital and Physicians Network had been granted
summary disposition before Dr. Labrador, the adjudication of Dr. Labrador’s liability on statute
of limitations grounds did not, and could not, form the basis of the trial court’s decision to grant
summary disposition to Port Huron Hospital and Physicians Network. Consequently, our
reasoning on appeal obviously differs from that of the trial court. Nonetheless, even assuming
arguendo that the trial court’s grant of summary disposition to Port Huron Hospital and
Physicians Network was erroneous at the time it was granted, there has since been an
adjudication of Dr. Labrador’s liability and this adjudication now prevents plaintiff from arguing
the merits of her negligence claims involving Dr. Labrador, meaning that she is thus currently
unable to establish vicarious liability against Port Huron Hospital or Physicians Network. See
Al-Shimmari, 477 Mich at 295-296. In these circumstances, even if the trial court’s grant of
summary disposition was improper at the time it was entered, subsequent events prevent plaintiff
provision is misplaced because it is not apparent that the records were deliberately falsified and,
in any event, plaintiff knew from the outset that Dr. Labrador, not Dr. Paul, treated her in the
emergency room. Accordingly, plaintiff is not entitled to rely on MCL 600.5855.
5
 In light of this conclusion, we find it unnecessary to address plaintiff’s additional arguments on
appeal relating to these defendants, including, for example, assertions that her complaint was
broad enough to allege vicarious liability based on acts by Dr. Labrador, arguments regarding her
ability to amend the complaint, and claims of equitable estoppel.


                                                -8-
from now pursuing claims of vicarious liability and there would simply be no point to reversing
the trial court’s grant of summary disposition to Port Huron Hospital and Physicians Network.
We thus affirm the trial court’s grant of summary disposition to Physicians Network and Port
Huron Hospital. See generally Gleason v Mich Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d
822 (2003) (“A trial court’s ruling may be upheld on appeal where the right result issued, albeit
for the wrong reason.”).

                                  IV. DOCKET NO. 318228

       Finally, Physicians Network challenges the trial court’s order granting the Smolinski
defendants’ motion for leave to file delayed notice of non-party fault concerning Dr. Labrador.
Specifically, Physicians Network argues that the trial court erred in denying its motion for
reconsideration of that order. We conclude that this issue is moot.

        “An issue is moot when a judicial determination cannot have any practical legal effect on
the existing controversy.” Moody v Home Owners Ins Co, 304 Mich App 415, 446; 849 NW2d
31 (2014). Here, the trial court has already acknowledged its error in granting the Smolinski
defendants’ motion to file delayed notice of non-party fault pertaining to Dr. Labrador.
Moreover, the Smolinski defendants, who filed the notice of non-party fault, have been
dismissed from this action and Dr. Labrador was properly granted summary disposition. Thus,
any comparative fault between the Smolinski defendants and Dr. Labrador is no longer at issue.
Accordingly, Physicians Network’s appeal in Docket No. 318228 is dismissed as moot.

       Affirmed in part and dismissed in part.

                                                           /s/ Karen M. Fort Hood
                                                           /s/ Joel P. Hoekstra
                                                           /s/ Peter D. O’Connell




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