                          STATE OF MICHIGAN

                           COURT OF APPEALS



BELLAIRE FAMILY AND COSMETIC                                        UNPUBLISHED
DENTISTRY, P.C.,                                                    February 11, 2016

               Plaintiff/Counter-Defendant-
               Appellant,

v                                                                   No. 324016
                                                                    Grand Traverse Circuit Court
MELISSA AYLWORTH,                                                   LC No. 2014-030143-CK

               Defendant/Counter-Plaintiff-
               Appellee.


Before: O’CONNELL, P.J., and OWENS and BECKERING, JJ.

PER CURIAM.

        Plaintiff, Bellaire Family and Cosmetic Dentistry, P.C. (Bellaire) appeals as of right the
trial court’s order granting defendant, Melissa Aylworth, summary disposition under MCR
2.116(C)(7). We reverse and remand.

                                I. FACTUAL BACKGROUND

        As part of Aylworth’s employment as a dentist in Bellaire’s office, the parties entered
into contracts that provided that Aylworth was “responsible for replacing any failing or clinically
unacceptable dental work that she has delivered to patients of [Bellaire.]” After Aylworth left
Bellaire’s employment, Bellaire filed a complaint for breach of contract, alleging that it
discovered that Aylworth had rendered failing or clinically unacceptable dental work to over
thirty patients, and thus, Aylworth was responsible for the costs and expenses Bellaire incurred
in repairing and replacing the dental work.

        In June 2014, following extensive proceedings, Aylworth moved for summary
disposition, alleging in pertinent part that Bellaire’s suit sounded in medical malpractice, and
Bellaire had failed to comply with medical malpractice statutes, including the statute of
limitations. Bellaire responded that an action sounds in medical malpractice only if the person
alleging negligent conduct had a professional relationship with the patient. The trial court
granted summary disposition under MCR 2.116(C)(7), concluding that Bellaire’s action sounded
in medical malpractice because it concerned negligence in the course of a professional
relationship.


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                                 II. STANDARDS OF REVIEW

        A party is entitled to summary disposition if the plaintiff’s claim is barred by a statute of
limitations. MCR 2.116(C)(7). This Court reviews de novo a trial court’s decision on a motion
for summary disposition. Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012).
Whether a claim sounds in medical malpractice is a question of law that this Court reviews de
novo. Bryant v Oakpointe Villa Nursing Ctr, 471 Mich 411, 419; 684 NW2d 864 (2004).

                                         III. ANALYSIS

      Bellaire contends that the trial court improperly granted summary disposition because
Aylworth never rendered professional health services to Bellaire. We agree.

        Generally, the statute of limitations for medical malpractice actions is two years. Driver
v Naini, 490 Mich 239, 249; 802 NW2d 311 (2011). Further, “a person shall not commence an
action alleging medical malpractice against a health professional or health facility unless the
person has given the health professional or health facility written notice under this section not
less than 182 days before the action is commenced.” MCL 600.2912b(1). If the plaintiff’s claim
sounds in medical malpractice and he or she did not take the procedural steps necessary to
preserve a medical malpractice claim, the statute of limitations bars the claim. Lockwood v
Mobile Med Response, Inc, 293 Mich App 17, 27; 809 NW2d 403 (2011).

        A claim sounds in medical malpractice if the claim (1) occurs within the course of a
professional relationship and (2) raises questions involving medical judgment. Bryant, 471 Mich
at 422. A professional duty exists under the first element if a contractual duty “required that
professional . . . to render professional health care services to the plaintiff.” Id. (emphasis
added). The Bryant Court cited this Court’s decision in Hill v Kokosky, 186 Mich App 300, 302;
463 NW2d 265 (1990), to support its statement of law. In Hill, this Court made clear that for an
action to sound in medical malpractice, the parties must have a physician-patient relationship:

               In physician malpractice cases, the duty owed by the physician arises from
       the physician-patient relationship. Accordingly, a professional physician-patient
       relationship is a legal prerequisite to basing a cause of action in professional
       malpractice against a physician. A physician-patient relationship exists where a
       doctor renders professional services to a person who has contracted for such
       services. [Id. at 302-303 (citations omitted).]

         Bellaire’s claims in this case are not based on the existence of a physician-patient
relationship between Bellaire and Aylworth. Rather, the contract between the parties in this case
is an employment contract, and Bellaire’s claims are based on an allegation that Aylworth
breached that employment contract. Accordingly, this case lacks a contractual relationship that
required Aylworth to render medical services to Bellaire, and Aylworth has not established that
Bellaire’s claims sound in medical malpractice. Given our resolution of this issue, we decline to
address whether Aylworth waived her statute of limitations defense by failing to raise it in the
first responsible pleading.




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       We reverse and remand for further proceedings. As the prevailing party, Bellaire may tax
costs. MCR 7.219(A). We do not retain jurisdiction.

                                                          /s/ Peter D. O’Connell
                                                          /s/ Donald S. Owens
                                                          /s/ Jane M. Beckering




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