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Gibbons v. IHA Health Servs. Corp.

Court of Appeals of Michigan
Nov 29, 2022
No. 361828 (Mich. Ct. App. Nov. 29, 2022)

Opinion

361828

11-29-2022

Jo Ann Gibbons v. IHA Health Services Corporation


LC No. 21-001141-NH

Christopher P. Yates Presiding Judge David H. Sawyer Douglas B. Shapiro Judges

ORDER

The application for leave to appeal is DENIED for failure to persuade the Court of the need for immediate appellate review.

Shapiro, J. would grant peremptory reversal as defendant has wholly failed to carry its burden to demonstrate a question of fact whether it is a "licensed health facility or agency" as defined in MCL 600.5838(1)(a) or to direct us to any law that would obviate that requirement. I understand the majority's desire to allow discovery to run its course before summary disposition is determined but that is not always necessary or proper. "A motion for summary disposition is generally premature if discovery has been completed unless there is not fair likelihood that further discovery will yield support for the nonmoving party's position." Liparoto Const, Inc v Gen Shale Brick, Inc, 284 Mich.App. 25, 33; 772 N.W.2d 801 (2009) (emphasis added). Here no such fair likelihood exists. The only question is whether defendant is a "licensed health facility or agency" and if anyone were to have information supporting defendant's claim it would be defendant. It is one thing to await discovery where the opposing party or third parties may have information relevant to the question. But that is not so here. If defendant's own records provide no evidence to support its position as to its own legal status, then where does it foresee finding it? Defendant does not state what additional discovery it wishes to obtain or why it has not requested it in the nearly one year of discovery that has already taken place. It does not even articulate what it hopes to find in further discovery that could possibly raise a question whether or not it is a "licensed health facility or agency."

I recognize that the trial court, by denying the motion without prejudice, has invited plaintiff to bring this motion again at the end of discovery as the question is a legal one and must be determined by the court at some point. The practical realities also weigh in favor of a prompt determination. The underlying issue here is whether or not defendant is shielded by the cap on non-economic damages provided for in medical malpractice cases, but not available here unless defendant is a "licensed health care facility or agency." As a practical matter, until the question of defendant's legal status is answered case evaluation will be useless and settlement discussions fruitless. Until the parties know whether or not there is a limit on noneconomic damages they will simply be talking past each other.

For these reasons, I would peremptorily reverse.


Summaries of

Gibbons v. IHA Health Servs. Corp.

Court of Appeals of Michigan
Nov 29, 2022
No. 361828 (Mich. Ct. App. Nov. 29, 2022)
Case details for

Gibbons v. IHA Health Servs. Corp.

Case Details

Full title:Jo Ann Gibbons v. IHA Health Services Corporation

Court:Court of Appeals of Michigan

Date published: Nov 29, 2022

Citations

No. 361828 (Mich. Ct. App. Nov. 29, 2022)