                          STATE OF MICHIGAN

                             COURT OF APPEALS



PASQUALE SCIORTINO and KAREN                                       UNPUBLISHED
SCIORTINO,                                                         August 29, 2017

               Plaintiffs-Appellants,

v                                                                  No. 331892
                                                                   Oakland Circuit Court
CHRISTOPHER NAJARIAN, D.O., DR. BLAKE                              LC No. 2014-143756-NH
MILLER, CHRISTOPHER B. NAJARIAN, D.O.,
P.C., and ST. JOHN MACOMB-OAKLAND
HOSPITAL,

               Defendants-Appellees,
and

MARK ALLEN, D.O., and ST. JOHN
PROVIDENCE HEALTH SYSTEM,

               Defendants.



Before: FORT HOOD, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J. (dissenting).

        I respectfully dissent. I believe that defendants’ own conduct precludes any possibility
that an ordinary layperson should have been aware of plaintiff’s cause of action prior to Dr.
Shapiro’s actual aborted corrective surgery, and none of Dr. Feldman’s commentary until that
time clearly constitutes anything more than personal opinion about a surgical procedure that
failed to provide its initially hoped-for outcome. Plaintiff’s April 28, 2014 notice of intent
requires that he discovered or should have discovered his cause of action no earlier than October
28, 2013. I find that the earliest plaintiff could have done so was December 11, 2013, when Dr.
Shapiro attempted to perform a second surgery. I would therefore reverse the trial court’s grant
of summary disposition.

        Our Supreme Court has held that “[o]nce a plaintiff is aware of an injury and its possible
cause, the plaintiff is equipped with the necessary knowledge to preserve and diligently pursue
his claim.” Solowy v Oakwood Hosp Corp, 454 Mich 214, 223; 561 NW2d 843 (1997). It is
common knowledge that the outcome of any given surgical procedure will not always be

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everything for which one might hope. Awareness of a sub-optimal outcome, or that a procedure
did not prove helpful, is not the same as awareness of an injury. This Court has explained that
the diligence standard turns on knowledge attributable to an ordinary layperson rather than a
doctor or lawyer, and requires more than a mere possibility that such a person would be
theoretically capable of discovering the injury. Jendrusina v Mishra, 316 Mich App 621, 626,
631; 892 NW2d 423 (2016).

        Critically, the “physician’s explanations of possible causes or diagnoses of [the]
condition” were clearly obfuscating in manner and would lead any reasonable layperson to
conclude that it would be impossible to determine whether an injury had occurred. See Solowy,
454 Mich at 226-227. Any contention that plaintiff should have been aware that he had a cause
of action immediately after the surgery is dispelled by defendants’ instructions to plaintiff that
recovery from the procedure would take time and that he should engage in physical therapy.
Defendants’ admonition that the procedure was not guaranteed to help him is clearly information
upon which an ordinary layperson is objectively reasonable in relying upon. Another doctor’s
remark that Dr. Najarian had “messed up” is simply too vague to mean anything and could easily
mean nothing more than a failure to achieve all that should have been achieved. Failure to
successfully fix the original problem, coupled with a doctor’s cautionary statement that it may
take some considerable time to see results that may in fact never materialize, simply is not the
same as awareness that an actual destructive error occurred. Trying again with a different doctor
is likewise not the same as awareness that the first doctor affirmatively caused harm.

        Again, the “discovery rule” requires a plaintiff to become aware, or requires that a
plaintiff should become “aware of an injury and a possible causal link between the injury and an
act or omission of the physician.” Solowy, 454 Mich at 232 (emphasis added). Significantly,
MCL 600.5838a(2) expressly requires that a plaintiff “should have discovered the existence of
the claim,” not that a plaintiff could have. See Jendrusina, 316 Mich App at 624. Plaintiff was
clearly aware that the surgical procedure did not accomplish what he had anticipated. However,
it is clearly contrary to both the plain language and the plain spirit of the statute to require
patients to immediately assume and begin looking for an injury merely because they find an
outcome disappointing.

       Even if plaintiff’s commentary about desiring to “fix” what Dr. Najarian had “messed up”
could be reasonably construed as an understanding that Dr. Najarian had caused him an injury, it
must be considered along with all of the evidence and it is the only piece of evidence on which
defendants rely. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The December
14, 2011 operative report is deliberately deceptive, and there is at a very minimum a genuine
question of material fact as to what Dr. Najarian communicated to plaintiff or his family. A
party “is entitled to the benefit of testimony in support of a verdict in his favor despite his
expression of an opinion inconsistent therewith.” Ortega v Lenderink, 382 Mich 218, 223; 169
NW2d 470 (1969).

        It is certainly conceivable that plaintiff could have determined that he had been injured
shortly after the surgery, had he immediately assumed that defendants had made a critical and
damaging error and lied about it, and thus immediately sought another doctor to open the
surgical site back up to check. Such a response, particularly in the fact of assurances that
recovery would not be swift, is patently ridiculous. It was not until Dr. Shapiro informed

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plaintiff that he could not fix the problem that plaintiff should have become aware that actual
malpractice might have occurred. At the very least, a genuine question of fact exists whether
plaintiff should have known he had a cause of action at any point in time in-between.

       I would reverse.

                                                          /s/ Amy Ronayne Krause




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