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154717 - Kerry Jendrusina v Shyam Mishra, MD

Kerry Jendrusina,
Mark R. Bendure
(Appeal from Ct of Appeals)
(Macomb – Biernat, J.)
Shyam Mishra, M.D. and ShyamN. Mishra, M.D., P.C.,
Karen E. beach


On September 17, 2013, plaintiff Kerry Jendrusina filed a medical malpractice complaint against defendants Dr. Shyam Mishra and Dr. Mishra’s professional corporation. Plaintiff alleged that over the course of several years Dr. Mishra was his primary care physician and failed to properly manage his deteriorating kidney health. Defendants moved for summary disposition, arguing that plaintiff’s lawsuit was time-barred under the discovery rule, MCL 600.5838a(2), which provides that a plaintiff has six months to bring a medical malpractice suit after he “discovers or should have discovered the existence of the claim.” The trial court granted the motion, holding that plaintiff should have discovered the claim by January 3, 2011, when plaintiff was treated in a hospital emergency room and diagnosed with end-stage renal failure. The Court of Appeals reversed in a split published decision. The majority held that the proper inquiry under MCL 600.5838a is whether it was “probable that a reasonable lay person would have discovered the existence of the claim,” and it concluded that plaintiff’s claim was discoverable in September 2012, when plaintiff was told by his treating nephrologist that Dr. Mishra should have referred plaintiff to a specialist in 2008 and that plaintiff’s kidneys could have been saved. The dissenting judge would have affirmed under Solowy v Oakwood Hosp Corp, 454 Mich 214 (1997). The Supreme Court has directed oral argument on defendants’ application for leave to appeal to address whether plaintiff’s complaint was timely filed under MCL 600.5838a(2) and Solowy