                          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PASQUALE SCIORTINO and KAREN                                        UNPUBLISHED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.,
PC, 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.

PER CURIAM.

     Plaintiffs, 1 appeal as of right from the trial court’s order granting defendants’2 motion for
summary disposition in this medical malpractice action. We affirm.




1
  Plaintiff Karen Sciortino is Pasquale Sciortino’s wife, and her claims against defendants stem
from her loss of consortium. Accordingly, throughout this opinion, our reference to “plaintiff”
will refer to plaintiff Pasquale Sciortino.
2
  In an order of dismissal entered April 15, 2015, defendant St. John Providence Health System
was dismissed from this action without prejudice in the trial court. In a stipulated order of
dismissal entered November 10, 2015, defendant Mark Allen D.O. was dismissed without
prejudice from the proceedings in the trial court.


                                                -1-
        On appeal, plaintiff argues that the trial court erred in granting summary disposition in
favor of defendants on the basis of the statute of limitations where factual issues existed with
respect to when plaintiff discovered, or should have discovered, a possible cause of action
against defendants. We disagree.

        This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition. McLean v Dearborn, 302 Mich App 68, 72; 836 NW2d 916 (2013). In Frank v
Linkner, ___ Mich ___, ____; 894 NW2d 574 (2017) (Docket No. 151888); slip op at 5, the
Michigan Supreme Court recently set forth the applicable standard for reviewing a trial court’s
decision on a motion brought pursuant to MCR 2.116(C)(7):

               Pursuant to MCR 2.116(C)(7), a party may move to dismiss a claim on the
       grounds that the claim is barred by the applicable statute of limitations. “The
       question whether a cause of action is barred by the applicable statute of
       limitations is one of law, which this Court reviews de novo. This Court also
       reviews de novo a trial court’s decision regarding a summary disposition motion.”
       Seyburn, Kahn, Ginn, Bess, Deitch and Serlin, PC v Bakshi, 483 Mich 345, 354;
       771 NW2d 411 (2009). “In reviewing whether a motion under MCR 2.116(C)(7)
       was properly decided, we consider all documentary evidence and accept the
       complaint as factually accurate unless affidavits or other appropriate documents
       specifically contradict it.” Kuznar v Raksha Corp, 481 Mich 169, 175-176; 750
       NW2d 121 (2008).

MCL 600.5838a(2) sets forth the applicable statute of limitation for plaintiff’s medical
malpractice claim:

              Except as otherwise provided in this subsection, an action involving a
       claim based on medical malpractice may be commenced at any time within the
       applicable period prescribed in [MCL 600.5805] or [MCL 600.5851 to MCL
       600.5856], or within 6 months after the plaintiff discovers or should have
       discovered the existence of the claim, whichever is later. [Footnotes omitted;
       emphasis added.]

The parties do not dispute that plaintiff did not commence his cause of action within the statutory
two-year limitation period for medical malpractice actions. MCL 600.5838a(2); MCL
600.5805(6). Instead, at issue in this appeal is whether plaintiff commenced his medical
malpractice action “within 6 months after . . . plaintiff discover[ed] or should have discovered
the existence of [his] claim,” as set forth in MCL 600.5838a(2).

       In Moll v Abbott Laboratories, 444 Mich 1; 506 NW2d 816 (1993), the Michigan
Supreme Court recognized the following principles of law with respect to the application of what
has come to be known as “the discovery rule.”

              We hold that under the discovery rule, the statute of limitations begins to
       run when the plaintiff discovers, or through the exercise of reasonable diligence,
       should have discovered a possible cause of action. Furthermore, we hold that in
       the absence of disputed facts, the question whether a plaintiff’s cause of action is

                                                -2-
       barred by the statute of limitations is a question of law, to be determined by the
       trial judge. [Id. at 29.]

While recognizing that whether a plaintiff “knows” of a possible cause of action, is a “subjective
standard,” the Moll Court also determined that whether a plaintiff “should have known” of a
possible cause of action “is an objective standard based on an examination of the surrounding
circumstances.” Id. at 17-18. The Moll Court also quoted its earlier decision in Bigelow v
Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974), in articulating the policies underlying the
statute of limitations:

                Statutes of limitations are intended to “compel the exercise of a right of
       action within a reasonable time so that the opposing party has a fair opportunity to
       defend”; “to relieve a court system from dealing with ‘stale’ claims, where the
       facts in dispute occurred so long ago that evidence was either forgotten or
       manufactured”; and to protect “potential defendants from protracted fear of
       litigation.” [Moll, 444 Mich at 14.]

        In Solowy v Oakwood Hosp Corp, 454 Mich 214, 222-223; 561 NW2d 843 (1997), the
Michigan Supreme Court recognized that “[t]he rationale of Moll applies equally to malpractice
claims, whether legal or medical.” Specifically, the Solowy Court 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.” Id. at 223. While recognizing that a plaintiff does
not have to be able to prove every element of the cause of action before the statute of limitations
is implicated, the Solowy Court also clarified that the “‘possible cause of action’ standard” does
not require the plaintiff to be aware that his or her injury was even in fact caused, or likely
caused by his or her physician’s alleged omissions or mistake. Id. at 224. The Solowy Court
instructed that lower courts ought to follow a “flexible approach,” in applying the possible cause
of action standard, and described this approach, in pertinent part, as follows:

       In applying this flexible approach, courts should consider the totality of
       information available to the plaintiff, including his own observations of physical
       discomfort and appearance, his familiarity with the condition through past
       experience or otherwise, and his physician’s explanations of possible causes or
       diagnoses of his condition. [Id. at 227 (footnote omitted).]

The “possible cause of action” standard is to be applied with “a substantial degree of
flexibility[,]” and lower courts must remain guided by “the doctrine of reasonableness and the
standard of due diligence . . . [.]” Id. at 230. The Solowy Court also cautioned lower courts to
take care to apply the “possible cause of action” standard in a manner that furthers the
“legitimate legislative purposes behind the rather stringent medical malpractice limitation
provisions . . . [.]” Id. Additionally, in Solowy, the Court expressly held that where there are no
factual disputes regarding when the plaintiff discovered, or ought to have discovered, the cause
of action, the determination whether the cause of action is barred by the applicable statute of
limitations is a question of law left to the trial court. Id. at 230. In sum, the Solowy Court held,
in pertinent part, as follows:



                                                -3-
               The six-month discovery rule period begins to run in medical malpractice
       cases when the plaintiff, on the basis of objective facts, is aware of a possible
       cause of action. This occurs when the plaintiff is aware of an injury and a
       possible causal link between the injury and an act or omission of the physician.
       When the cause of the plaintiff’s injury is difficult to determine because of a delay
       in diagnosis, the “possible cause of action” standard should be applied with a
       substantial degree of flexibility. In such cases, courts should be guided by the
       doctrine of reasonableness and the standard of due diligence, and must consider
       the totality of information available to the plaintiff concerning the injury and its
       possible causes. [Id. at 232.]

        Recently, in Jendrusina v Mishra, 316 Mich App 621, 624; 892 NW2d 423 (2016), this
Court reviewed the statutory language of MCL 600.5838a(2), providing that “an action involving
a claim based on medical malpractice may be commenced . . . within 6 months after the plaintiff
discovers or should have discovered the existence of the claim . . . .” This Court reasoned that
the trial court in Jendrusina erred when it substituted the language “could have” for “should
have” in the statutory language. Jendrusina, 316 Mich App at 624. After reviewing the
dictionary definitions of the words “could” and “should[,]” this Court determined, in pertinent
part, as follows:

               Therefore, the inquiry is not whether it was possible for a reasonable lay
       person to have discovered the existence of the claim; rather, the inquiry is whether
       it was probable that a reasonable lay person would have discovered the existence
       of the claim. [Id. at 626.]

The Jendrusina Court cited language from Solowy that “[t]he discovery rule period begins to run
when, on the basis of objective facts, the plaintiff should have known of a possible cause of
action.” Id. at 631, citing Solowy, 454 Mich at 222. The Jendrusina Court further clarified that
“[a]n objective standard, however turns on what a reasonable, ordinary person would know, not
what a reasonable physician (or medical malpractice attorney) would know.” Id.

       In determining whether plaintiff knew, or should have known, of his possible medical
malpractice cause of action six months before he commenced his cause of action, a review of his
deposition testimony is instructive. Specifically, defense counsel questioned plaintiff during his
deposition regarding any conversations he may have had with his primary care physician, Dr.
Erwin Feldman, D.O., in the spring of 2013 regarding his December 8, 2011 surgery.

              Q. Did Dr. Feldman ever tell you that he also got a copy of Dr. Najarian’s
       operative report, and – well, let me just ask that much. Did Dr. Feldman ever
       discuss with you that he was aware that there had been an intraoperative
       complication that was repaired?

             A. The only thing, when I went back, -- first I went to therapy for two
       months.

               Q. Right. Actually, I think three.



                                               -4-
              A. Well, whatever. So [Dr. Najarian] put something on here (indicating),
       put a cast on. And this right here (indicating), the bone was showing. So the
       people at therapy said go back to the doctor, he has to fix this up, you’re going to
       lose your finger. So what they did, [Dr. Najarian] cut a little farther back,
       whatever, so it won’t drag on the finger. And then I went back twice to him to
       say, Doc, I can’t move my finger, something is wrong with my hand. [Dr.
       Najarian] said, well, wait until it shuts closed [sic] and then come back to me.

              Q. Okay.

             A. I said, what about the pain. [Dr. Najarian] said take a couple of Advil,
       whatever, you know.

               So what I did, I went back to [Dr. Feldman]. I said, Dr. Feldman, what’s
       going on here? He said, Pat, I’m sorry to say this about the guy [Dr. Najarian], I
       thought [Dr. Najarian] know his job [sic], but you know something, you’re not the
       first guy complaining to me. You are the second or third guy who come and say
       [Dr. Najarian] messed up. Dr. Feldman, why do you send me over there for [sic]?

              Q. Did Dr. Feldman, when you had that conversation, did he say he had
       reviewed the operative report and he saw that there had been a complication?

               A. No, he don’t say [sic] nothing like that to me. I don’t know if he did or
       not, I’m not sure.

              Q. Did he ever say anything more specific about how he knew [Dr.
       Najarian] had messed up?

             A. [Dr. Feldman] sent me to another doctor to do the operation. Dr.
       Feldman said, well, I am not going to send you back to [Dr. Najarian], I will send
       you somewhere else.

              Q. And that was Dr. [Paul] Shapiro?

              A. Dr. Shapiro.

       Plaintiff went on to testify that Dr. Shapiro told him and his daughter, Maria Aiello,
following the December 11, 2013 surgery that he performed that he was unable to repair “what
[Dr. Najarian] messed up.” Specifically, according to plaintiff, Dr. Shapiro told him, on an
unspecified date following the December 11, 2013 surgery when he went to have his stitches
removed, the following, in pertinent part:

               So when I went back to take the stitches out and all that, [Dr. Shapiro] told
       me, he says, I can’t do nothing for you. I said, fix it, do something. [Dr. Shapiro]
       said, leave it, it is what it is. Whatever [Dr. Najarian] messed up, [Dr. Shapiro]
       could not fix it. [Dr. Shapiro] cannot fix what [Dr. Najarian] messed up.



                                               -5-
       Plaintiff also acknowledged that at Dr. Shapiro’s request, on April 24, 2013, he went to
Dr. Najarian’s office to pick up a copy of his operative report from the December 8, 2011
surgery, as well as a copy of his electromyography (EMG). When questioned by defense
counsel if the family member who accompanied him to pick up the documents from Dr.
Najarian’s office read the documents, plaintiff responded, “[n]o, nobody read nothing.” After
providing the documents from Dr. Najarian’s office to Dr. Shapiro on May 28, 2013, plaintiff
denied discussing with Dr. Shapiro the contents of the documents. According to plaintiff, “I
don’t understand what the [documentation from Dr. Najarian’s office] says. You know, I don’t
know.” Defense counsel continued to question plaintiff as follows:

                 Q. But when you had that visit with Dr. Shapiro in May of 2013, did you
         discuss what had gone on with you and what the plan was?

                 A. Yeah. After Dr. Feldman set up the appointment with Dr. Shapiro,
         then I went to [Dr. Shapiro’s] office, and I tell [Dr. Shapiro], you know. I says
         [sic], my hand now, -- I went over there to help me out, I said [Dr. Najarian]
         ruined me. I can’t do this and that. And [Dr. Shapiro] said, well, I could fix it.
         Okay, if you can fix it, then do it.

        Plaintiff continued to testify that Dr. Shapiro recommended another operation for him,
and conducted what appears from the record to be testing of his nerves. Specifically, plaintiff
stated, with regard to visiting Dr. Shapiro for a second opinion:

                  But you know, I want to fix my hand and I went through whatever it is. I
         tried to see if they could fix my problem, you know.

       Defense counsel also questioned plaintiff regarding when he first heard about the
complication that took place during the December 8, 2011 surgery:

                Q. Is the first time that you heard about what Dr. Najarian had done
         during his surgery was after your December [2013] surgery, on December 13th,3
         or had Dr. Shapiro told you about that earlier at the April or May visit?

                 A. That [Dr. Najarian] messed up?

                 Q. Yes.

                 A. Yes, because see, I don’t know – the only thing I know, [Dr. Najarian]
         messed me up; the pain, the aggravation. I went to therapy, I did exactly what
         [Dr. Najarian] wanted me to do, nothing happened. I got worse. So I went to his
         office. I said, hey, Doc.

                 Q. Whose office, Najarian or Shapiro?


3
    Plaintiff’s surgery with Dr. Shapiro actually took place on December 11, 2013.


                                                 -6-
              A. Not Shapiro, the other guy.

              Q. Najarian?

                A. Najarian. I said, look, Doc. So what he did, he went in the back room.
       He put something in his hand sharp, with a needle sticking up. So [Dr. Najarian]
       said, let me see your hand, and he was poking me with a sharp thing.

              Q. Okay.

              A. I said, Doctor, you are poking me, but I don’t feel nothing. [Dr.
       Najarian] says, I am poking you. I said, I saw that thing in your hand. So you
       were poking me with a sharp object or whatever it was to make sure to see,
       because [Dr. Najarian] wasn’t sure enough of what’s going on.

               Q. Okay. So it sounds like, and correct me if I am misunderstanding you,
       that shortly after the surgery by Dr. Najarian, you felt something had been done
       wrong?

               A. No, I went to therapy. I thought if I go to therapy, -- [Dr. Najarian]
       recommend therapy, I went to the therapy, because I thought therapy would make
       my hand better, all my problems will go away. This was after therapy, then I
       started to see that nothing move, nothing – it got worse.4

              Q. And when did you start having those thoughts?

             A. As soon as I got done with therapy, you know, within a month, within
       a week, whatever, you know, nothing is going on. And first I went to see Dr.
       Feldman, and then I went back to [Dr. Feldman], what’s going on?

               Q. And when you went back to Dr. Feldman, Dr. Feldman said you are
       not the first person who has complained about –

              A. No, [Dr. Feldman] apologized to me for sending me over there [to Dr.
       Najarian]. [Dr. Feldman] said, you’re not the first guy [Dr. Najarian] messed up.

              Q. So then [Dr. Feldman] recommended that you see Dr. Shapiro?

              A. Correct [(footnotes added).]

       When questioned by defense counsel if Dr. Shapiro had seemed concerned about the
December 8, 2011 surgery before he operated on plaintiff himself on December 11, 2013, the
following colloquy occurred:


4
 According to the record, Dr. Najarian discharged plaintiff from physical therapy on March 1,
2012.


                                                -7-
              Q. Before Dr. Shapiro cut you open and looked at the nerve, had [Dr.]
       Shapiro ever made any other comments to you that were critical of Dr. Najarian,
       even before he went in there and looked around?

              A. Yeah, [Dr. Shapiro] say [sic] it don’t [sic] seem right. I don’t know,
       [Dr. Shapiro] says. I don’t know what – [Dr. Shapiro] said, I can’t see what the
       problem is, but we got to find out. I don’t know, I don’t remember exactly what
       the conversation was. You know, so I’m not sure what [Dr. Shapiro] was saying
       to me.

         According to plaintiff, he waited until December 11, 2013 to have his second surgery
after his visit with Dr. Shapiro on May 28, 2013 because Dr. Najarian had told him, in response
to concerns he apparently voiced to Dr. Najarian, “don’t worry, eventually you are going to be
better. Eventually you are going to feel better, this is going to go away.” Specifically, plaintiff
testified:

               Because I went to [Dr. Najarian], and I said, hey, Doc, here, I am losing
       my hand. [Dr. Najarian] said, don’t worry about it, we did a good job, telling me
       [Dr. Najarian] did a good job, and with time it gets better and you will be all right.
       So I wait and I wait, and in the meantime I go to [Dr. Feldman]. He give me a
       pain shot, he give me some heavy medication, bothers my stomach, stomach
       upset. So I take Advil before I go to bed, because otherwise, I can’t sleep. And I
       wait, and then all of a sudden, I said, Doc, -- Dr. Feldman, -- I said, Doc, this guy
       [Dr. Najarian] is taking me for a ride, come on. [Dr. Feldman] said, hey, I’m
       sorry I sent you to the guy. He says, I couldn’t believe I sent you for this . . . .

Finally, plaintiff reiterated that immediately following his December 8, 2011 surgery, and in
follow up visits with Dr. Najarian, Dr. Najarian never told him that his ulnar nerve had been
transected during surgery.

        As set forth in Moll, the question whether plaintiff “should have known” of his possible
cause of action is determined using an objective standard, considering the surrounding
circumstances. Moll, 444 Mich at 17-18. Similarly, in Solowy, the Michigan Supreme Court
instructed that once a plaintiff is aware of a potential injury and its possible cause, the onus falls
on the plaintiff to diligently pursue his claim and preserve his legal rights. Solowy, 454 Mich at
223. A close review of plaintiff’s deposition testimony reveals that plaintiff, by his own
admission, was aware that there was a problem with his hand shortly following his December 8,
2011, surgery and after he completed physical therapy, and he in fact confronted and questioned
Dr. Najarian about his concerns. By plaintiff’s own admission, he consulted with Dr. Feldman in
the spring of 2013, and expressed his concerns about his hand following the surgery, and he and
Dr. Feldman had a conversation about how Dr. Najarian had mishandled the matter. It was at
that point that plaintiff was referred to another physician, Dr. Shapiro, with his first visit taking
place on April 16, 2013. Plaintiff also acknowledged in his deposition testimony that at Dr.
Shapiro’s request he returned to Dr. Najarian’s office on April 24, 2013 to obtain a copy of his
operative note, which included information regarding the complication that took place during his
December 8, 2011 surgery. By his own admission, during a conversation with Dr. Shapiro
during one of his initial visits, plaintiff informed Dr. Shapiro that Dr. Najarian “ruined

                                                 -8-
[plaintiff].” While plaintiff argues on appeal that there are factual disputes with respect to when
he became aware of a possible medical malpractice action, a thorough review of his own
deposition testimony simply belies this claim. Put another way, plaintiff’s own words confirm
that he was aware he was experiencing physical discomfort and pain and lack of progress
following the December 8, 2011 surgery, he first discussed his concerns with Dr. Najarian, and
unsatisfied, he returned to Dr. Feldman, who sent him to another physician. Solowy, 454 Mich at
227. The record evidence also confirms that plaintiff was having serious misgivings regarding
Dr. Najarian’s course of treatment for his hand, discussing his concerns with both Dr. Feldman
and Dr. Shapiro. Thus, the record evidence strongly confirmed a nexus between the December
8, 2011 surgery, and the pain and discomfort that plaintiff was experiencing for a significant
period of time afterward. Id. at 226. Specifically, while factual disputes may exist concerning
what plaintiff and his son, Nick Sciortino, were told immediately following his December 8,
2011 surgery regarding whether a complication occurred during surgery, plaintiff’s deposition
testimony unequivocally confirms that in the early months following his December 8, 2011
surgery, plaintiff was concerned about the outcome of the December 8, 2011 surgery, and had a
conversation with Dr. Najarian about it. Additionally, during the spring of 2013, plaintiff saw
Dr. Feldman and Dr. Shapiro and discussed his concerns about Dr. Najarian’s performance.
Accordingly, using an objective standard and duly considering the surrounding circumstances,
we conclude that the record evidence confirms that plaintiff should have known of the potential
existence of his claim more than six months before his notice of intent was filed in April 2014.
Moll, 444 Mich at 17-18.

         We acknowledge that plaintiff points to the affidavit of Dr. Feldman, included in support
of his motion for reconsideration, asserting that it demonstrates that factual disputes existed with
regard to whether plaintiff had a conversation with Dr. Feldman about Dr. Najarian’s treatment
of plaintiff’s hand. As an initial matter, it was within the trial court’s discretion to decline to
consider this affidavit where it could have been presented during the summary disposition
proceedings. Yachcik v Yachcik, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No.
333834); slip op at 10. While Dr. Feldman averred that he “never informed plaintiff that Dr.
Najarian had transected [plaintiff’s] ulnar nerve or committed malpractice[,]” he also noted that
he documented in his file that plaintiff informed him on March 26, 2013 that he needed surgery
on his right hand. While Dr. Feldman also averred that he had no reason to believe that a
“surgical mishap” had taken place during the December 8, 2011 surgery, plaintiff himself
testified at length during his deposition about conversations with Dr. Feldman in which plaintiff
shared his concerns regarding the outcome of the December 8, 2011 surgery, and the pain and
discomfort that he was experiencing. Even setting aside Dr. Feldman’s alleged comments
regarding whether Dr. Najarian mishandled the December 8, 2011 surgery, plaintiff’s concerns
and complaints voiced to Dr. Feldman, viewed with an objective standard against the
surrounding circumstances, establish that plaintiff knew, or should have known, about a possible
cause of action for medical malpractice. Moll, 444 Mich at 18; Solowy, 454 Mich at 216, 222.
Put another way, the record evidence is clear that plaintiff was aware of an injury to his hand,
and that its possible cause was the December 8, 2011 surgery. Solowy, 454 Mich at 222, citing
Moll, 444 Mich at 23-24.

       The present case is also distinguishable from Jendrusina. In that case, the plaintiff,
diagnosed following an emergency room visit with kidney failure, alleged that the defendant
physician violated a duty of care to him by not referring him to a kidney specialist. Jendrusina,

                                                -9-
316 Mich App at 624. This Court determined that while testing with the defendant physician
demonstrated that plaintiff was experiencing “abnormal and worsening levels of two blood
measures related to kidney functions[,]” for quite some time, the record evidence did not
establish that the plaintiff was aware of the “increasingly abnormal indications of kidney
disease[,]” or that he should have known of a possible medical malpractice claim. Id. at 627,
628, 630, 632, 634, 635. In contrast, the record in this case is replete with evidence that “on the
basis of objective facts, [plaintiff] should have known of a possible cause of action.” Solowy,
454 Mich at 222. Therefore, the trial court properly concluded that summary disposition was
warranted pursuant to MCR 2.116(C)(7).5

       Affirmed. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219.



                                                              /s/ Karen M. Fort Hood
                                                              /s/ Mark J. Cavanagh




5
  While presented as an issue in his statement of the issues on appeal, plaintiff does not present
any argument in his brief on appeal in support of his assertion that the trial court erred in denying
his motion for reconsideration. Accordingly, this issue is waived. Houghton v Keeler, 256 Mich
App 336, 339-340; 662 NW2d 854 (2003).




                                                -10-
