DAVID CARRIVEAU and LAURA
September 10, 2002
Oakland Circuit Court
ROBERT MANDELL, D.O., TRI-COUNTY
ORTHOPEDICS GROUP, BRENT L.
BINGHAM, D.O., and BOTSFORD GENERAL
LC No. 99-016497-NH
Before: White, P.J., and Neff and Jansen, JJ.
Plaintiffs appeal as of right the circuit court’s order granting defendants’ motion for
to MCR 7.214(E).
On March 30, 1979, David Carriveau fractured his upper left arm and damaged the soft
refractured his arm in July 1979. On July 16, 1979, Drs. Mandell and Bingham repaired the
fracture by inserting a plate and screws. Thereafter Carriveau experienced total numbness in his
left arm, and was unable to move his wrist or open his hand. Dr. Mandell maintained the
numbness was due to scarring related to the original injury. Dr. Eugene Horrell, a hand surgeon,
performed several procedures designed to give Carriveau some function in his arm. In 1998, Dr.
Horrell informed Carriveau the original injury could not have caused the loss of function of the
radial nerve, and the nerve must have been damaged during the surgery in July 1979.
Plaintiffs filed suit alleging that defendants committed malpractice by damaging the
injuries. The complaint alleged that Dr. Mandell told Carriveau the cause of his injuries was
callus and scarring, and that Dr. Mandell made this statement knowing it was false and with the
intent to conceal his negligence. The complaint alleged that Carriveau first discovered the
negligence in 1998. Laura Carriveau asserted a claim for loss of consortium.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) and (10),
arguing that plaintiffs’ claims were barred by the applicable statute of limitations, and that a
genuine issue of fact did not exist regarding fraudulent concealment or delayed discovery of the
claim because medical records from 1981-1983 established that Carriveau was aware he had
suffered radial nerve palsy as a result of the July 1979 surgery. In response, plaintiffs argued
that although Carriveau was aware of the loss of function in his arm immediately after the 1979
surgery, his ability to pursue a claim was hindered by Dr. Mandell’s fraudulent explanation that
the numbness was a result of the original injury.
The circuit court granted summary disposition in favor of defendants, finding the
the July 1979 surgery, and that that knowledge was sufficient to make him aware that he had a
possible cause of action. The circuit court concluded that plaintiffs’ cause of action was not filed
within six months of the discovery of a possible cause of action, as required by MCL
We review a trial court’s decision on a motion for summary disposition de novo.
The statute of limitations for medical malpractice actions is two years. MCL
Under this exception a claim may be commenced after the expiration of the two-year period if it
is commenced within six months after the plaintiff discovered or should have discovered the
claim. MCL 600.5838a(2). The discovery rule does not require that the plaintiff know with
certainty the defendant committed malpractice. It requires the plaintiff know of the act or
omission giving rise to the malpractice and that the plaintiff have reason to believe it was
improper. A claim accrues once the plaintiff is aware of the injury and its possible cause.
Solowy v Oakwood Hosp Corp, 454 Mich 214, 222; 561 NW2d 843 (1997). The determination
of whether and when a plaintiff discovered or should have discovered a claim is a question of
fact for the jury, unless the facts are undisputed and the trial court can properly decide the issue
as a matter of law. Id., 230.
As a general rule, if the existence of a claim or the identity of the person who is liable for
who is entitled to bring the action discovers or should have discovered the existence of the claim
or the identity of the person who is liable. MCL 600.5855; MCL 600.5838a(2)(a). For
fraudulent concealment to toll the running of the limitations period the fraud must be manifested
by an affirmative act or misrepresentation. Silence alone is not sufficient. Bradley v Gleason
Works, 175 Mich App 459, 462-462; 438 NW2d 330 (1989). There must be the employment of
artifice designed to prevent inquiry or to escape investigation, and to mislead or hinder the
acquisition of information disclosing the existence of a claim. McCluskey v Womack, 188 Mich
App 465, 472; 470 NW2d 443 (1991).
Plaintiffs argue the circuit court erred by granting defendants’ motion for summary
1979. Dr. Mandell performed surgery to repair the fracture, and Carriveau’s condition began to
improve. In July 1979, Carriveau refractured the arm. Dr. Mandell performed additional
surgery, after which Carriveau lost all function in the arm. Knowledge of the existence of the
be aware that an act or omission was improper. Solowy, supra, 222.
The evidence, in particular the medical records generated when Carriveau underwent
been improving before he refractured it, but he lost function in the arm after the July 1979
surgery. The loss of function had not occurred after the original injury, in spite of the fact that
surgery had been required at that time; however, a loss of function occurred after the July 1979
surgery. The evidence showed that Carriveau associated the nerve injury with the surgery and
that he was aware that after the July surgery he had an injury different in kind than after the
Even assuming arguendo that Dr. Mandell’s explanation was an attempt at fraudulent
its possible cause as early as 1981. The circuit court did not err in finding the undisputed
evidence showed that Carriveau was aware of his injury and its possible cause as early as 1981,
and that the claim accrued at that time. Id. The circuit court correctly decided the issue as a
matter of law, id., 230, and properly granted summary disposition in favor of defendants on the
ground that plaintiffs’ action was barred by the statute of limitations. MCL 600.5805(5); MCL
/s/ Helene N. White
/s/ Kathleen Jansen