Anderson v. Shih

LAVETA ANDERSON and CHARLES J. TAUNT, Plaintiffs-Appellees, v. JENNY SHIH, D.O., INOCENCIO CUESTA,

M.D., MALINI VENKATRAM, M.D., SUCHITA BHEEMREDDY, M.D.,

UNIVERSITY PHYSICIAN GROUP, VHS PHYSICIANS OF MICHIGAN,

HARPER-HUTZEL HOSPITAL, LEGACY HHH, VHS HARPER-HUTZEL, INC.,

VHS OF MICHIGAN, INC., LEGACY DMC, TENET HEALTHCARE CORPORATION,

BOTSFORD GENERAL HOSPITAL, and THE WELLNESS PLAN, Defendants,

and,

KARTHIK YADAGIRI, PT, RUPA PATEL, PT,

THERAMATRIX, INC., doing business as THERAMATRIX PHYSICAL REHABILITATION,

THERAMATRIX PHYSICAL REHABILITATION, THERAMATRIX PHYSICAL THERAPY NETWORK,

THERAMATRIX PHYSICAL THERAPY PLAN, INC., Defendants-Appellants.

LAVETA ANDERSON and CHARLES J. TAUNT, Plaintiffs-Appellees, v. JENNY SHIH, D.O., INOCENCIO CUESTA,

M.D., MALINI VENKATRAM, M.D., SUCHITA BHEEMREDDY, M.D.,

KARTHIK YADAGIRI, PT, RUPA PATEL, PT, UNIVERSITY PHYSICIAN GROUP,

VHS PHYSICIANS OF MICHIGAN, HARPER-HUTZEL HOSPITAL,

LEGACY HHH, VHS HARPER-HUTZEL, INC.,

VHS OF MICHIGAN, INC., LEGACY DMC,

TENET HEALTHCARE CORPORATION,

BOTSFORD GENERAL HOSPITAL,

THERAMATRIX, INC., doing business as

THERAMATRIX PHYSICAL REHABILITATION, THERAMATRIX PHYSICAL REHABILITATION,

THERAMATRIX PHYSICAL THERAPY NETWORK,

and THERAMATRIX PHYSICAL THERAPY PLAN, INC., Defendants,

and

THE WELLNESS PLAN, Defendant-Appellant.

No. 344540

No. 344549

STATE OF MICHIGAN COURT OF APPEALS

April 23, 2020

If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports.

UNPUBLISHED

Oakland Circuit Court

LC No. 2016-153143-NH

Before: SAWYER, P.J., and LETICA and REDFORD, JJ.

PER CURIAM.

In Docket No. 344540, defendants, Karthik Yadagiri, Rupa Patel, Theramatrix, Inc., d/b/a Theramatrix Physical Rehabilitation, Theramatrix Physical Rehabilitation, Theramatrix Physical Therapy Network, and Theramatrix Physical Therapy Plan, Inc. (the "Theramatrix defendants") appeal the trial court's order denying their motion for summary disposition and granting a bankruptcy trustee's motion to be added as a party-plaintiff in this medical malpractice action. In Docket No. 344549, defendant, the Wellness Plan, appeals the same order. This Court initially denied defendants' applications for leave to appeal, but our Supreme Court, in lieu of granting leave, remanded the matters to this Court for consideration as on leave granted. Anderson v Shih, 503 Mich 956 (2019). Thereafter, this Court consolidated the two appeals.¹ For the reasons set forth below, we affirm.

I. FACTUAL BACKGROUND AND PROCEEDINGS

Plaintiff, Laveta Anderson ("plaintiff"), alleged in her complaint that in the spring of 2013 she began experiencing pain in her knee, finger, shoulder, back, and pelvis. In June 2013, she sought medical treatment from her primary care physician, Dr. Jenny Shih, who diagnosed her with arthritis and referred her to Theramatrix Rehabilitation for physical therapy. The therapy did not resolve plaintiff's pain but exacerbated the condition. Between December 2013 and February 2014, plaintiff was referred to and evaluated by three rheumatologists, Dr. Malini Venkatram, Dr. Suchita Bheemreddy, and Dr. Inocencio Cuesta.

Meanwhile in the midst of seeking treatment for her medical issues, on February 25, 2014, plaintiff filed a petition seeking protection under Chapter 7 of the bankruptcy code. The bankruptcy court appointed Charles J. Taunt (trustee) as the trustee of plaintiff's bankruptcy estate.

On February 27, 2014, neurologist Dr. Robert Pierce evaluated plaintiff and ordered a spinal MRI which was performed on March 20, 2014. The results of the MRI indicated that plaintiff suffered from spinal cord compression due to disc herniation with abnormal cord signal and myelomalacia. The following day, on March 21, 2014, plaintiff underwent emergency spinal surgery, which included cervical disc decompression with fusion.

During her April 2, 2014 bankruptcy creditor's examination, plaintiff did not disclose any information regarding a possible medical malpractice claim against defendants. In fact, she responded "no" when asked whether she had any reason to believe that she was entitled to pursue a lawsuit against anyone. She also circled "no" on a questionnaire that inquired whether she believed that a doctor had committed malpractice during treatment. On June 6, 2014, the trustee filed a report indicating that plaintiff's bankruptcy estate had no assets to administer and on July 7, 2014, the bankruptcy court discharged plaintiff's debts and closed her bankruptcy case.

On September 18, 2014, plaintiff consulted an attorney about a possible medical malpractice claim against several medical professionals who allegedly failed to discover and treat her spinal condition. Plaintiff filed a notice of intent on May 29, 2015, and on November 30, 2015, plaintiff commenced this medical malpractice action against defendants. During her June 21, 2016 deposition, plaintiff testified that she had filed for bankruptcy protection and that her debts were discharged in 2014. Plaintiff explained that she later consulted an attorney because she felt that her doctors misdiagnosed her condition and that they were not serious about her well-being.

On December 18, 2017, 18 months after defendants first learned of plaintiff's 2014 bankruptcy case, defendants Malini Venkatram and University Physician Group² moved for summary disposition on the ground that plaintiff's complaint should be dismissed because she lacked the capacity to sue since her medical malpractice action constituted property of her bankruptcy estate, and only the trustee in bankruptcy as representative of the estate had standing to file this suit. Alternatively, defendants argued that, because plaintiff failed to disclose her potential medical malpractice action as an asset in her Chapter 7 disclosures, the doctrine of judicial estoppel barred her from pursuing her claims. Several other defendants, including appellants herein, concurred in the summary disposition motion. Plaintiff opposed the motion on the ground that during her bankruptcy proceeding she did not have sufficient knowledge to alert her to a possible medical malpractice action. Plaintiff also argued that judicial estoppel did not bar her claim because she unintentionally failed to disclose a possible cause of action as the result of mistake or inadvertence.

Plaintiff's attorney advised the bankruptcy trustee on January 31, 2018, of plaintiff's medical malpractice action. That same day, the trustee obtained the bankruptcy court's permission to reopen plaintiff's Chapter 7 bankruptcy case. On February 1, 2018, the trustee filed a notice of withdrawal of Chapter 7 Trustee's Report of No Distribution and filed a Notice of Assets and Notice to Creditors. Then, on March 19, 2018, plaintiff filed in the bankruptcy court amendments to her bankruptcy schedules. In amended Schedule A/B, plaintiff identified an interest in a possible personal injury claim in the amount of $5,000,000. She amended her Schedule C to claim as exempt, among other things, the proceeds from a possible personal injury claim. On April 11, 2018, the bankruptcy court appointed plaintiff's attorney as the trustee's special counsel for purposes of pursuing and representing the trustee in plaintiff's medical malpractice action.

On May 16, 2018, the trustee moved to be added as a party-plaintiff in the medical malpractice action under the mandatory joinder rule, MCR 2.205(A). The trustee asserted that the estate's claims were not time-barred because they related back to the filing of plaintiff's complaint. Alternatively, the trustee argued that the discovery rule applicable to medical malpractice claims rendered his claims timely because he did not discover a possible cause of action until January 2018. In their response, the Theramatrix defendants argued that the addition of a new party did not relate back to the filing of the complaint, and therefore, the trustee's claims were time-barred.

The trial court granted the trustee's motion to enforce mandatory joinder and denied defendants' motions for summary disposition. Thereafter, these appeals ensued.

II. STANDARDS OF REVIEW

Defendants moved for summary disposition under MCR 2.116(C)(5), (7), and (10). We review de novo a trial court's decision on a motion for summary disposition. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344 (2016). We review the entire record to determine whether the moving party was entitled to summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Whether a party has standing is a legal question that we also review de novo. Barclae v Zarb, 300 Mich App 455, 467; 834 NW2d 100 (2013). A party may assert that a plaintiff lacks standing and the legal capacity to sue by summary disposition motion under MCR 2.116(C)(5). See Pontiac Police & Fire Retiree v Pontiac No 2, 309 Mich App 611, 619; 873 N.W.2d 783 (2015). To preserve a motion under MCR 2.116(C)(5), "a party must raise the issue in its first responsive pleading or in a motion filed prior to that pleading." Id. (quotation marks and citations omitted). In reviewing a motion under MCR 2.116(C)(5), we must consider the pleadings, depositions, admissions, affidavits, and other documentary evidence submitted by the parties. UAW v Central Mich Univ Trustees, 295 Mich App 486, 493; 815 NW2d 132 (2012).

MCR 2.116(C)(7) "permits summary disposition where the claim is barred by an applicable statute of limitations." Nuculovic v Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010). When addressing such a motion, a trial court must accept as true the allegations of the complaint unless contradicted by the parties' documentary submissions. Patterson v Kleiman, 447 Mich 429, 434 n 6; 526 NW2d 879 (1994). Although not required to do so, a party moving for summary disposition under MCR 2.116(C)(7) may support the motion with affidavits, depositions, admissions, or other admissible documentary evidence, which the reviewing court must consider. Maiden, ...