Gore v. Rains & Block

729 v Gore Rains & Block v GORE RAINS & BLOCK 10, 1990, Lansing. No. 114744.

Docket Submitted October at Decided 17, 1991, June at 9:30 a.m. Virginia brought Mark and Gore action in the against Washtenaw Circuit Court firm the law of Rains & Block, Rains, Lowry and A. Norman L. Block and Allan R. Gurvitz, firm, attorneys alleging in that the defendants malpractice had failed to file a medical claim on Mark Gore’s behalf. The defendants admitted that had breached the applicable professional by failing standard of care to file the claim, malpractice disputed medical but the merit of that malpractice Following medical claim. a trial before Edward D. Deake, J., $60,000 returned a verdict of in favor of underlying malpractice claim, Mark Gore for the medical $60,000in anguish arising favor of Gore Mark for mental out ofthe claim, malpractice $30,000 Virginia and in of favor Gore for her loss of consortium claim. The defendants moved for a trial, remittitur, judgment notwithstanding new or a the ver- granted judgment dict. The trial court the motion for a not- withstanding respect Virginia the verdict with Gore’s verdict consortium, for loss of but denied the defendants’ other mo- Virginia appealed, tions. Gore and the defendants and the appealed. cross Appeals The Court of held: granting The trial court erred the defendants’ motion for

judgment notwithstanding respect the verdict with Virginia for claim loss of consortium. damages would be entitled to seek of for loss consortium if on plaintiffs’ marriage the date of yet Mark had not discov ered, diligence or in the exercise reasonable could not have discovered, malpractice. that he a cause of had action for medical question A discovery of fact exists the date of References 2d, 226; Attorneys Am Jur Legal malpractice Lawat Husband Wife § 447. § handling defending malpractice or claim. ALR4th 725 Recovery occurring prior injury for loss of consortium for to mar- riage. 5 ALR4th 300. ques- malpractice; accordingly, a retrial of the medical required. Gore was tion of consortium is Plaintiff Mark of loss physical injury damages caused properly awarded both anguish for mental the medical legal malpractice. by the caused 1. differ whether reasonable minds could Because marriage, plaintiffs, or the on the their had discovered date of malprac- had a should have discovered that Mark Gore claim, jury never to determine tice and because the asked notwithstanding issue, judgment the that the motion for a for retrial the claim have been denied and of verdict should loss should have been ordered. of consortium precedent physical injury to recov- 2. a is a condition While distress, require- ery damages for there is no such of emotional anguish. Accordingly, recovery damages for mental ment for granted damages physical injury jury properly the both for the anguish by malpractice and for caused the medical mental malpractice. by legal caused the by prejudiced testimony 3. concern- The defendants were not care, ing proper professional despite the fact standard of the breaching that the defendants admitted standard. object 4. to the instructions The defendants’ failure to review, having precludes injustice no manifest been shown. testimony Any resulting 5. the admission of error from Gore, concerning the of a doctor who treated Mark statements trial, by the but was not called as a witness at were cured who jury. trial court’s instructions to the part, part, Affirmed in reversed in and remanded. P.J., concurring dissenting part, part in stated Giiíis, denying erred the for that the trial court defendants’ motion judgment respect notwithstanding Mark verdict with damages anguish, properly Gore’s claim for for mental but notwithstanding granted judgment for motion respect Virginia Gore’s claim for loss of consor- verdict with arising sought damages for distress tium. Mark emotional however, legal malpractice; out a claim of the defendants’ such brought physical by only injury can there is a caused be where negligent not conduct. Because Mark Gore did defendant’s injury legal any bodily time or as a of the sustain at the result malpractice, damages there could be no claim for for emotional arising legal malpractice. Virginia out of the distress consortium, damages for that it is claim for loss of the extent distress, also of Mark Gore’s claim for emotional derivative is To the extent the claim of of consortium must fail. loss claim, plaintiffs’ marriage malpractice based on the medical Gore v Rains & Block Opinion op the Court malpractice they clearly pre- after knew of the medical claim cludes the loss of consortium claim. — op Malpractice Discovery — — Loss 1. Torts Consortium Malpractice. spouse person bringing malpractice

The of a a medical claim is claim, precluded bringing despite not from a loss of consortium having malpractice been married after the date the was com- mitted, if, marriage, injured spouse at the time of the has discovered, diligence not or in the exercise of due could not discovered, have that there existed a cause of action for medi- malpractice. cal Damages Malpractice Malpractice Legal — — — 2. Medical Malpractice Anguish. — Mental plaintiff

A in an action for based on an attor- pursue ney’s malpractice failure to a medical action on behalf may physical of the recover both for the injury caused the medical and for the mental anguish malpractice. caused Prigioniero Shoup, Louis Mark D. plaintiff. (by

Collins, Farrell, Einhorn & PC. Michael J. Slank), L. Sullivan and Noreen for the defendants. Kelly Gillis, P.J., Before: J. and Michael and Neff, JJ. Virginia Plaintiffs, Gore, J. Mark and

Neff, sued the firm law of Rains & Block and certain partners failing thereof for to timely file a claim on their Following jury trial, a behalf. Mark Gore was underlying $60,000 awarded for the medical mal- practice anguish $60,000 claim and for mental arising legal malpractice claim, out of for a damages. Virginia $120,000 total of Gore was $30,000. awarded a Defendants thereafter moved for judgment remittitur, trial, new a notwith- standing part, the verdict. In the motion for the notwithstanding judgment the verdict was related op the Court Virginia of consortium. claim for loss Gore’s to judg- granted for a motion defendants’ The court ment regard notwithstanding with the verdict Virginia Gore, otherwise denied but appeal, Virginia filed claim of Gore then a motion. challenging granting de- circuit court’s order notwithstanding judgment for a fendants’ motion appeal a cross with Defendants filed the verdict. regard judgment in favor of Mark entered to the denying their order and the circuit court’s judgment remittitur, trial, or a motion for a new notwithstanding the verdict. court’s denial defen- affirm the circuit

We notwithstanding judgment for a dants’ motion regard claims. We to Mark Gore’s verdict with granting order defen- the circuit court’s reverse dants’ notwithstanding judgment motion for a regard loss of verdict with consortium claim.

i 1981, to Thorne Mark went On October pain complaining Hospital’s emergency room, initially a a testicle. While swollen associated surgeon him his testicle would have informed operation appar- amputated, occurred, no to be ently torsion, ruled out because that doctor normally twisting re- testicle which would of the prevent gangrene. quire amputation Instead, Hospital at Thorne the doctors who treated Gore pro- that he had an infection determined hospi- discharge from the to treat it. After ceeded tal, to see one of the doctors who Gore continued hospital. pre- him at That doctor had seen cortisone. While different antibiotics and scribed im- condition was doctor believed that Gore’s swelling, proving, he was still concerned about Gore v & Block Rains Opinion of the Court appeared slightly which him to be At decreased. time, Mark Gore’s testicle was less than in double size. 30, 1981,

On November the sixth time Gore was changed doctor, treated ics the doctor antibiot- again and told him that he could return to following work the week. Gore believed that his improving and, therefore, condition not did was not return to the doctor’s office for further treat- though discharged ment even he had not been from the doctor’s care. We note that Mark Gore did not have medical insurance. subsequently

Mark Gore was treated for other hospitalized and, fact, ailments for a head in- jury he received an unrelated automobile acci- dent. He did not mention that his testicle contin- that, ued to be swollen. He testified on the basis of provided by original surgeon the information good any who indicated that his testicle "wasn’t anyway,” he believed that he had to live with the swollen testicle. April 1983,

In Mark Gore went to the emer- gency hospital room of another because he was get unable to time, out of bed. At that the testicle approximately six times its normal size. Gore urologist, was referred Dr. Lin, Chin-Ti who April suspecting removed 14, 1983, his testicle on Malignant cancer. confirmed, cancer was and Gore undergo surgery May was scheduled to a second on 9, 1983. Mark Gore Gore married on May 7, 1983. Mark Gore underwent the second surgery lymph May remove his nodes on 1983.

Sometime after Mark Gore first met with Dr. exactly suspected Lin, it when, is not clear Hospital the doctors at Thorne had missed diagnosing However, the cancerous tumor. was too worried about himself to consult an attor- 189 op the Court thought surgery, that

ney. Gore the second After any money attorney because consult an he should support family in his be used to recovered could he trial, At Vir- he did not survive. event that the ginia shortly that, after their dis- Gore confirmed thought that Lin, Mark Dr. she and cussion the failing malpractice original doctors had committed Virginia Gore cancer. to detect Mark Gore’s questioned or direct examination on was never first she whether cross-examination suspected after her before or marriage to Mark Gore. Virginia Gore 2, 1983, Mark and October

On Block. Plaintiffs claim defendant met with thereafter repeated telephone calls and let- their 25, On June defendants. ters went unanswered Mark Gore 1985, Gurvitz wrote defendant following letter: delay responding apologies for the My sincere however, we have your earlier communications facts of making thorough inquiry into the a

been complaints. not been alledged We have your [sic] appropriate expert to make the to find an able causal pos- support relationship or our theories going to are not malpractice. Accordingly, we sible our file. and will close proceeding your on claim be questions or to discuss you any If have want further, us. please feel free to contact matter sought advice weeks, Gore Mark Within two attorney 1985, 1, filed a of another legal malpractice and on October against Therein, defendants.

suit alleged to file a defendants failed Mark Gore malpractice against him treated

suit doctors who applicable Hospital statute at Thorne within 1985, filed limitations. On November adding Virginia complaint, as a Gore amended an plaintiff claiming a loss had suffered that she & Block v Rains Opinion of the Court legal malprac- as result of the of consortium tice. disposi- summary filed motion for

Defendants claim, loss of consortium tion of alleging Mark after the that she had married and, therefore, his she had no removal of testicle The circuit court denied loss of consortium claim. summary disposition. motion for liability trial, on At the defendants conceded the failing medical claim for to file a malpractice of limita- action within statute however, tions; that medical defendants claimed malpractice had not occurred. Plaintiffs claimed malpractice jury did occur. The found that medical plaintiffs. above, court in subsequently granted of As noted favor motion for

defendants’ a regard notwithstanding judgment verdict Virginia Gore’s claim. ii Virginia appeal, the trial Gore claims On improperly granted motion for a court notwithstanding judgment the verdict relative to for loss consortium. She contends that her claim of legal married Mark Gore she was malpractice when and, therefore, entitled to occurred is on mal- recover for loss consortium practice claim. Virginia physi- aware Mark’s Gore was

While they married, neither cal condition when was necessarily physical that his condition on notice malpractice com- attributable to the medical was differ in 1981. Since reasonable minds could mitted when the cause of action for discovered, we cannot conclude as Virginia a cause of of law that "married matter precluded thereby from should be action” and App 736 189 Mich Opinion op the Court pursuing Furby a claim for loss of consortium. v Raymark App Industries, Inc, 154 Mich 347- (1986). 348; 397 Rather, NW2d the issue is one jury. for the Sumcad, Kermizian v (1991); Pacqu- 690, 692-693; 470 NW2d 500 vMoss ing, (1990). App 574, 583; 455 NW2d 339 Because, however, the was never instructed to through when, determine able the exercise of reason- diligence, plaintiffs discovered or should have possible action, discovered had a cause of we granting must reverse the trial court’s order de- judgment notwithstanding fendants’ motion for a regard the verdict with Gore’s loss of consortium claim and remand this case for retrial on this issue.

hi We now turn to the issues raised in defendants’ appeal. cross

A argue Defendants first that certain evidence of the details of their breach of the standard of care requires was inadmissible and reversal. We dis- agree. they Defendants admitted at trial that applicable failing breached the of standard care pursue timely in a manner claim of malpractice. they disputed However, medical underlying merit of the claim, thereby essentially denying liability pro- for their malpractice. fessional permitted plaintiffs

The trial court to call two of the individual defendants as witnesses over the objections argue of the defense. Defendants that negligence precluded any their admission of mony testi- applicable profes- violation of the 737 & Block Gore v Rains op the Court appeal, of care. On defendants sional standard argue the evidence was inadmissible and prejudicial. admit evidence is

The decision whether the trial court and within the sound discretion of appeal an abuse of will not be disturbed on absent App People Watkins, v 176 Mich discretion. (1989); 430; 440 Kochoian v Allstate Ins NW2d (1988). App 1, An Co, 12; 423 NW2d 913 only unpreju- if an of discretion is found abuse diced considering person, the facts on which the justifica- say acted, court would there was no trial tion or excuse for the ruling Watkins, made. su- reviewing pra. a court’s decision to admit When weight evidence, will not assess the this Court only evidence, but will determine value of properly the evidence was of a kind which whether jury. be considered Schanz v New could Hampshire Co, 395, 405; 418 Ins 165 Mich (1988). NW2d admission that breached the

Defendants’ applicable professional standard of care was a generally judicial an is admission. Such admission express purpose dispensing of made for proof particular Laundry formal of a fact. Macke Overgaard, App 250, 253; Service Co v (1988). However, 433 NW2d 813 defendants cite no proposition authority, none, and we find for the point proof formal on an admitted is forbid- especially den, where the evidence is admissible purposes. case, In this we find that most for other testimony of the elicited from the individual defen- damages. dants was relevant to the issue quoted Defendants have the comment to SJI2d 17.01, which states: permitted

The should not be to consider it has It question liability where been admitted. Opinion op the Court jury to the any is reversible error to submit issue questioned admit- which has not been or has been ted. princi- case,

In this was no violation of the there ple 17.01, out in to SJI2d because set the comment permitted ques- jury the tion whether defendants breached of the was not to consider the

their standard handling in the case. The court instructed care jury: they The defendants have admitted that are the plaintiff any damages liable to the which might plaintiff hve recovered an action [sic] Dickman, against Dr. Dr. and Thorne Carothers Hospital. only question are to decide the You prevailed have on his

whether would claim; so, if the amount malpractice medical plaintiff.... awarded to the to be clearly jury’s limited the The court considera- precluded testimony question tion of the considering question jury of defen- from any injuries may liability for which have dants’ negligence. occurred because of their testimony of the elicited To the extent that some purely from the individual defendants constituted relating judicial any admission, to their evidence arising error out of the admission of such evidence clearly have failed to harmless. Defendants explain mony, prejudiced by this testi- how were glean any unable to

and we have been light prejudice In of the trial from record. to focus on the court’s clear instruction underlying claim, we find no regarding disputed requiring reversal error testimony.

B argue the trial court next Defendants & v Rains Block 739 Opinion op the Court granted should have their motion for remittitur regard jury’s separate to the award of $60,000 for Mark Gore’s damages” "emotional associ- claim, ated with the because he prove failed to a definite objective and physical injury produced as a result of emotional dis- tress caused proximately negligent disagree. conduct. We

We first out point that defendants’ assertion plaintiffs sought "emotional distress” dam- in ages is error.1 Plaintiffs never claimed emo- tional damages, distress and the was not jury instructed on damages. Rather, such sought, and the case went to the on the jury basis of jury instructions concerning, damages based on consideration pain of suffering, and an- mental guish, fright shock, and pleasure denial of social and embarrassment, enjoyment, humiliation, or mortification.

The jury found that medical malpractice had occurred, and damages were assessed accordingly. The determine, then went on to pursuant to given instructions that had objec- been without defense, tion from the that separate damages were attributable to defendant firm. law circumstances,

Under is require- there no ment of physical harm Mark Gore as a condition precedent to recovery damages of "emotional distress.” The jury was not instructed such any condition of and the recovery, record is silent concerning any request for such an 1 damages Michigan by Emotional distress are available to a negligent injury family stander who witnesses a inflicted on a close May 728, Hosp, App 749; member. v William Beaumont 180 Mich 448 (1989); Hosp Michigan, App NW2d 497 Pate v Children’s 158 Mich 120, 123; (1986). physical 404 NW2d 632 Actual harm is an element of damages may for emotional distress which also in other be available Bank, City Savings App tort actions. Ledbetter v Brown (1985). 703; 368 NW2d 257 729 Opinion of the Court Moreover, the facts on the defense.

instruction required injury physical was not case, of this anguish” "mental to the entitlement establish by plaintiffs. damages requested distress” "emotional between The distinction damages anguish” made damages is "mental Savings City Bank, 141 Mich v Brown in Ledbetter App pertinent (1985). Most 368 NW2d 692, 701-705; judice the definition is the case sub anguish Ledbetter, su- found mental pra, pp 703-704: however, not so damages, are anguish Mental recov- not limited to plaintiff A is circumscribed. but, rather, is anguish, pain and physical ery for anxiety pain and damages for mental to entitled i.e., for injury, the naturally flow from which v Beath mortification, shame, and humiliation. 512, 517-518; 78 NW 537 Co, R

Rapid 119 Mich 76, 87; 55 Nyhuis, 335 Mich Grenawalt v (1899); Smith, (1952); Veselenak NW2d 736 567, [v Supreme (1982)]. As the 574; 261 327 NW2d in Veselenak: Court stated between asked to differentiate are not "[J]uries mortification, shame, humil- states, as mental such compen- are asked to indignity. Juries iation and flows anguish, which and sate mental distress naturally described may be alleged and from the misconduct mortification, shame, in such terms as addition, plain- if the indignity. In humiliation and being compensated for all mental distress tiff is the source anguish, it matters not whether anguish injury the itself is the mental distress (Empha- injury the occurred.” way or the in which 414 576-577. original.) Mich sis injury prove physical necessary to be It to is not damages anguish recovery mental entitled to malprac- A this case. under the circumstances the recover is entitled to tice injury, includes in this case which extent of the & v Rains Block op the Court underlying physical injury the caused the medi- (failure diagnose) cal and the men- (fail- anguish tal caused claim). process Industries, ure Basic Food App Grant, 685, Inc v 692; Mich 310 NW2d 26 (1981). liability, Defendants admitted and because there jury was evidence on the record from which anguish damages could determine that mental consequence were a and natural of defen negligence, jury’s dants’ award should be al lowed to stand. Law Offices of Lawrence J Stock ler, Rose, PC v 33; 436 NW2d 70 (1989).

c Defendants also claim that the trial court erred give requested jury when it refused to their in- struction Mark Gore’s failure to mini- damages. mize his We note that discussions con- cerning instructions occurred off the rec- judge jury, ord. After the dants stated that instructed the defen- had no corrections of the given, instructions which did not include an in- minimizing damages. struction on We further note requested that defendants such an instruction in brief, their trial which was filed with the clerk’s day office one after the returned its verdict. judge Nonetheless, the lower court indicated that secretary bring he would have his him the trial day briefs on the trial, first of after defendants’ attorney claimed that his trial brief was filed the Friday before trial. object Given defendants’ failure to to the in- given, appellate precluded

structions review is injustice. absent manifest Detroit, Janda v App (1989). 126; 437 NW2d 326 We Opinion of the Court damages mitigation of instruction a believe that applies fails when as SJI2d 53.05 such minimize he after knows to his injury. know that the doctors Mark did not Gore Hospital had him had at Thorne who failed he testified that treated diagnose properly fact, In condition. to his opin- he failed to obtain second though to cause ion, even his condition continued surgeon pain, at Thorne of what the him because Hospital that defen- further note him. We told experts of the it a breach that was dants’ testified physician who treat- of care for was standard ing up not to after he did Mark Gore not follow appear for treatment. Under these circum- further injustice stances, resulted from no manifest give Gore’s to on Mark failure an instruction damages. mitigate to his failure

D Finally, claim that are entitled defendants testimony to a new of Mark trial because concerning Lin, made argue Dr. numerous statements testify. these did Defendants who not hearsay. improperly We admitted statements were note preclude testimony moved to defendants by Dr. Lin to Mark statements made rule The until con- Gore. fronted trial court declined specific testimony objection with the defendants. began testify Dr. Lin’s manner

Gore about during Defen- made the first visit. and statements plaintiff’s object, told did counsel dants not testify stated, Lin not about Dr. had what Eventually, hearsay. it because attorney object, not and Gore did answer did question. him that Dr. Lin told then testified great.” Defendants that his "chances aren’t too & Block Gore v Rains Opinion of the Court objected attorney moved to strike. Plaintiffs responded that the statement was not offered to prove matter, truth of the to show Mark but Gore’s fearful agreed. state of mind. The trial court subsequently testified that he would returning fearful of the cancer until continue be Dr. Lin told him otherwise. Defendants did not object. Dr. Lin

Mark Gore later testified that told surviving him that gery his chances second sur- fifty-fifty. object. were Defendants did not When counsel asked Gore if Dr. Lin had given sign,” him "the all clear defendants’ attor- ney objected. attorney again Plaintiffs’ claimed the statement went to Mark Gore’s state of mind. The testify regarding trial court ruled that Gore could expectations. so, his Gore did and then testified: "I just today, [Dr. Lin] wish he could be here but he’s busy things too for these kind of . . . .” Plaintiffs’ attorney "go then told Gore that he should not just "Well, into that.” Gore then testified: trying I’m say, know, I wish he was here. You this would have all over. been This would be over.” object. Defendants did not sought Defendants to introduce a letter from plaintiffs’ attorney plaintiffs’ to Dr. Lin in which attorney opinion asked Dr. Lin for his of the original doctors’ actions. Defendants claimed that probative the letter was to rebut the inference testimony Lin created Mark Gore’s that Dr. favorably have testified to him. The would court declined to admit the exhibit and instead stated give it would an instruction on the matter. jury: The trial court instructed the Dr. has mentioned in Lin’s name been connec- appear Dr. Lin not tion with this matter. testify did may anything

in this You case. not consider as to what Dr. Lin’s testimony said 189 op the Court Dr. Lin You must assume have been. would opinion no in this matter. had objected to Gore’s the extent that defendants To by testimony Dr. Lin made statements trial, were handled hold that the matters at properly. object, we not that defendants did

To the extent injustice occurred. no manifest testimony object con- to Gore’s also Defendants Again, unavailability cerning trial. Dr. Lin’s for contrary object, and, to not defen- defendants did dants’ argument, in- the curative we hold any prejudice. was sufficient to cure struction the trial court further claim that Defendants the letter from it failed to admit erred when disagree. plaintiffs’ attorney Dr. Lin. to We argue that the trial court next Defendants provided in as have instructed should disagree. testimony no 6:01. We There was SJI2d Lin had control over Dr. and failed Again, produce curative him. instruction given by was sufficient. the trial court

Finally, claim that the cumulative defendants right of these errors denied them their effect disagree. Having error, no we fair trial. found IV jury’s in Mark Gore for The verdict favor of underly- $60,000 the medical claim on ing claim is affirmed. The separate jury’s $60,000 Mark verdict for damages resulting legal anguish from the mental malpractice claim is affirmed. The trial court’s judgment granting defendants’ motion for a order notwithstanding jury’s as to the the verdict award $30,000 Gore for of consortium loss of is reversed and trial of that issue.

the case is remanded for a new Gore v Rains & Block Gillis, P.J. part, part. Affirmed in in reversed Remanded for proceedings opinion. further We do not retain consistent with this

jurisdiction. J., J. Kelly,

Michael concurred. (concurring part dissenting Gillis, P.J. in part). agree While I with the remainder of the opinion, majority I would affirm the circuit court’s granting judgment order defendants’ motion for a notwithstanding respect the verdict with to Vir- ginia Gore’s loss of consortium claim and reverse denying the trial court’s order for a respect defendants’ motion judgment notwithstanding the verdict with jury’s separate $60,000

to the verdict favor of Mark Gore for emotional distress caused malpractice. April

Dr. Lin removed Mark Gore’s testicle on suspecting Malignant 14, 1983, cancer. cancer was confirmed, and Mark Gore to un- was scheduled dergo surgery May 9, a second on 1983. Mark Gore Virginia May 7, Gore married on 1983. Mark surgery Gore underwent the second to remove his lymph May nodes on 1983. plaintiffs they

After defendants notified that malpractice would not file a medical suit on behalf against Gore, defendants, Mark he filed suit alleging they timely that suit had failed to file a mal- practice against doctors who had treated him Hospital. plaintiffs 5, 1985, at Thorn On November complaint, adding Virginia an filed amended plaintiff claiming as a that she had suffered a loss of consortium as the result of the mal- practice. summary disposi-

Defendants filed a motion for Virginia claim, tion of loss consortium alleging that she had married Mark Gore after the and, therefore, removal of his testicle she had no of consortium loss claim. 189 Gilijs, P.J. averring response, plaintiffs filed affidavits

In legal malpractice, Mark that, as a result of the damage psychiatric that im- had suffered Gore paired Virginia relationship plaintiff his they averred that when Plaintiffs further Gore. married, they Mark know that did not lymph nodes removed two his Gore would have days denied defendants’ The circuit court later. disposition. summary motion trial, however, that he At Mark Gore testified surgery lymph scheduled node knew that wedding days therefore, and, he could his two after wedding day. completely enjoy Moreover, his not that, he first met with Gore testified after Mark Dr. began Lin, had he to fear that the doctors failing diag- malpractice in 1981 committed Nonetheless, Mark Gore a cancerous tumor. nose testified attorney an that he did not consult with about himself. After because he was too worried thought surgery, that he he the second Mark Gore any money attorney, should consult an recovered could be used to because support family his that he did not survive. event Virginia Likewise, trial, that at Gore testified Gore, knew that he she married Mark she when was lymph nodes removed scheduled to have his Virginia days that two later. Gore also testified seeing attorney plaintiffs after discussed an soon Dr. Lin. Mark Gore’s first visit with further attorney to see an testified went they the doctors because assumed when failed had committed Virginia diagnose Gore re- Mark Gore’s cancer. peated plaintiffs’ shortly occurred discussion after a discussion with Dr. Lin. Virginia appeal, Gore claims that the trial

On granted improperly court the defendants’ motion notwithstanding judgment the verdict with for a Gore v Rains & Block Opinion by Giujs, P.J. Virginia regard claim. Gore contends her legal when the was married to Mark Gore she therefore, and, is entitled to occurred respect recover for loss consortium support legal malpractice claim. In of her conten- that she is entitled to loss of consortium tion damages Virginia legal malpractice,

for the requirement, argues that the "suit within a suit” Grant, Industries, 107 Mich Basic Food Inc v (1981), apply 685, 692-693; 310 does not NW2d for the emo- Mark Gore could recover and that tional distress that practice. mal- resulted from I the "suit within a suit” re- would hold that applied quirement defendants to this case because malpractice suit within failed to file the medical the statute of limitations. p

Id., 693. Virginia accepted if I Gore’s claim that the Even requirement apply, did not I "suit within a suit” did not have a would hold that of consortium for the derivative claim loss damages emotional Mark Gore suffered as the legal malpractice. result of the Gore claimed that he had suffered I note that Mark

"great anxiety permanent” is as a result of defendants’ which legal malpractice. Daley LaCroix, In v 384 Mich (1970), Supreme 12-13; Court 179 NW2d our held: objective physical injury a definite and [W]here proxi- produced

is mately the as a result of emotional distress conduct, negligent by defendant’s caused properly pleaded proved in a physical for such may action recover notwithstanding consequences to himself ab- upon plaintiff at the any physical impact sence of shock. time of mental Smith, v I do not think that Veselenak App 748 189 729 by Opinion Gillis, P.J. (1982), changed require-

567; 327 261 NW2d this complete reading Instead, ment. I believe that a City Savings Veselenak and Ledbetter v Brown Bank, 692, 703; NW2d (1985), demonstrates that are consistent with Daley. any bodily

Here, Mark Gore did not sustain injury legal malpractice; at the time of the there- only fore, he could recover for emotional distress objective physical injury where a definite and produced as a result of the emotional I distress. plaintiffs’ allege physical injury note that resulting failed to supra. Daley,

from emotional distress. In any event, testified that Mark Gore was upset by defendants’ failure to return their tele- phone receipt by calls and answer their letters and their 25, 1985, plaintiffs

of defendants’ June letter. Plain- expert, tiffs’ who met with on two occa- restaurants, sions in depressed testified that Mark Gore was opinion

and stated his the subse- quent legal malpractice exacerbated Mark Gore’s depression. expert distinguish Plaintiffs’ could not by between the emotional caused testify medical and and failed to depression by how Mark Gore’s was exacerbated legal malpractice. plaintiffs’ expert Moreover, depression primarily testified that Mark (i.e., stemmed from his concern about his future the reoccurrence of cancer because the alleged months). undiagnosed tumor went for a number of Plaintiffs testified that Mark Gore had trouble sleeping. expert Plaintiffs’ testified that this was depression. one of the Still, manifestations of Mark inability sleep Gore testified that his occurred diagnosed. after the cancer was Given this testi- mony, I am unable to conclude that Mark Gore objective physical injury suffered a definite and as proximately the result of emotional distress caused Gore v Rains & Block by Gillis, P.J. legal malpractice. result, As a Vir- ginia Gore’s derivative claim for loss of consortium must fail to the extent it is on based emotional distress suffered Mark Gore as a result of the legal malpractice that occurred.

Virginia Gore also claims that she is entitled to bring a loss of consortium claim because was she married to Mark Gore when he discovered the underlying malpractice existence of the medical claim, which under the "suit within a suit” re- quirement part plaintiffs’ damages would of be legal malpractice. agree I with the trial court that Virginia marry Gore could not a cause of action. Pacquing, App 574; Moss v 455 NW2d (1990); Furby Raymark 339 Industries, Inc, v 154 (1986). App 339; Mich 397 NW2d 303 See also 1980). (WD Supp Rowe, Mich, Chiesa v 486 F 236 testimony they Plaintiffs’ trial confirmed that be- physicians lieved that the who treated Mark Gore Hospital malpractice by at Thorne committed fail- ing diagnose enlargement his testicular as can- malpractice cer. Plaintiffs believed that occurred meeting after Mark Gore’s first with Dr. Lin in early April, plaintiffs’ marriage. Moreover, before Virginia required surgery Gore knew of the and its possible marriage. side effects before her Under agree circumstances, these I with the trial court Virginia that Gore did not have a cause of action regard underly- for loss of consortium with to the ing malpractice medical claim. I believe that majority distorting is this record when it states: Virginia physi- "While Gore was aware of Mark’s they married, cal condition when neither was necessarily physical on notice that his condition malpractice was attributable to the medical com- mitted legal 1981.” Plaintiffs need not have had a opinion malpractice or a medical that was they committed before it could be said that discov- App 189 Mich Gillis, P.J. Isser, ered their cause of action. v Szatkowski (1986). plain- Here, 264; 390 NW2d 668 diagnose tiffs larged en- believed that the failure to malpractice testicle was after their first meeting with Dr. Lin. I would hold that and, discovered their cause of action at that time Virginia therefore, Gore was not entitled to loss of underlying consortium for the having knowledge because she married Mark Gore of that claim.

Virginia Gore further claims that she was also defendants’ client because she had attended with meeting Gore Mark sequently, defendants’ office. Con- Virginia argues jury’s that represents appropriate damages verdict for defen- respect dants’ breach of the standard care with complaint alleged to her. Plaintiffs’ first amended Virginia anguish Gore suffered mental as the result some defendants’ conduct. While there was testimony plaintiffs’ upset, appeared that condition to be related to diagnosis again, Mark Gore’s of cancer. Once there objective physical pro- injury was no definite and proxi- duced as the result of emotional distress mately negligent caused defendants’ conduct and, therefore, Gore could not recover. Daley, supra. Consequently, I would hold that the granted properly trial court defendants’ for motion judgment notwithstanding the verdict with re- spect judgment $30,000 to entered favor of Virginia Gore.

I now turn to the issues raised in defendants’ appeal. cross Defendants claim that the trial court granted should have their motion for remittitur respect jury’s separate to the award of damages arising $60,000 for Mark Gore’s emotional legal malpractice out of the claim because he prove objective physi- failed to that a definite and & v Rains Block Opinion by Gilus, P.J. injury produced cal as a result of emotional distress caused proximately negli- gent above, conduct. For the I reasons discussed agree. Id.

Hence, I would affirm the jury’s verdict in favor $60,000 of Mark for on the medical malprac- claim, tice claim underlying as well granting as trial court’s order defen- dants’ motion for a judgment notwithstanding respect $30,000 verdict with to the jury’s award of however, to Virginia Gore; I would reverse separate $60,000 verdict jury’s for Mark Gore’s resulting emotional legal malprac- from tice.

Case Details

Case Name: Gore v. Rains & Block

Court Name: Michigan Court of Appeals

Date Published: Jun 17, 1991

Citation: 473 N.W.2d 813

Docket Number: Docket 114744

Court Abbreviation: Mich. Ct. App.