Donald Hemphill v. Jiab Suleiman Do , 914 N.W.2d 359 ( 2018 )

Order Michigan Supreme Court
Lansing, Michigan
July 13, 2018 Stephen J. Markman,
Chief Justice
155464 Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
DONALD HEMPHILL, Elizabeth T. Clement,
Plaintiff-Appellee, Justices
v SC: 155464
COA: 335351
JIAB SULEIMAN, D.O., JIAB SULEIMAN, D.O., Wayne CC: 16-001303-NH
D.O., P.C., and PREMIER ORTHOPEDICS, L.L.C.,
Defendants-Appellants.
___________________________________________/
By order of September 12, 2017, the application for leave to appeal the February
7, 2017 order of the Court of Appeals was held in abeyance pending the decision in
Jendrusina v Mishra (Docket No. 154717). On order of the Court, leave to appeal having
been denied in Jendrusina on January 12, 2018, 501 Mich. 958 (2018), the application is
again considered, and it is DENIED, because we are not persuaded that the question
presented should be reviewed by this Court.
MARKMAN, C.J. (dissenting).
I respectfully dissent from this Court’s order denying leave to appeal and instead
would grant leave. This case was held in abeyance pending a decision in Jendrusina v
Mishra, 500 Mich. 987 (2017), which involved the application of the “discovery rule” set
forth in MCL 600.5838a(2) (“[A]n action involving a claim based on medical malpractice
may be commenced at any time within the applicable period prescribed in section 5805 or
sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have
discovered the existence of the claim, whichever is later.”). Although this Court in a
divided decision voted to deny leave to appeal in Jendrusina, I continue to believe that
the Court of Appeals seriously misapplied the discovery rule in that case. See Jendrusina
v Mishra, 501 Mich. 958 (2018) (MARKMAN, C.J., dissenting). In my judgment, granting
leave to appeal in this case would afford us the opportunity to thoroughly assess the
proper contours of the discovery rule. For these reasons, I would grant leave to further
consider and delineate the proper application of the discovery rule.
ZAHRA and WILDER, JJ., join the statement of MARKMAN, C.J.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 13, 2018
Clerk
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