Medical malpractice; Timeliness; Principle that a plaintiff may not create an issue of fact by contradicting a complaint with an affidavit; Dykes v William Beaumont Hosp; Leave to amend the complaint

The court held that while the trial court should not have granted defendants in this medical malpractice action summary disposition under MCR 2.116(C)(8), it should have done so “under MCR 2.116(C)(7) because plaintiff could not contradict his prior” untimely complaint with an affidavit. Thus, it found that the trial court reached the correct result, although for the wrong reason. Plaintiff did “not contest that, as pleaded, his complaint was untimely.” Rather, he asserted “the trial court should have granted him leave to amend his complaint.” But the court noted that he failed to “offer a proposed amendment to his complaint in writing.” Thus, the trial court did not abuse its discretion in denying his request to amend his complaint. Defendants contended the trial court erred in determining “there was a genuine issue of fact under MCR 2.116(C)(7) as to the date plaintiff discovered the retained fragment because a plaintiff may not create an issue of fact by contradicting a complaint with an affidavit.” The court agreed. The complaint stated that plaintiff “discovered complications arising from the 2018 surgery on [1/31/22], when he received a CT scan that showed a foreign body in his right external iliac vein.” After defendants filed their summary disposition motion, “plaintiff filed an affidavit averring that he did not learn of the catheter fragment until [2/4/22] or later and included a report of a CT scan performed on [1/31/22], but printed on [2/4/22].” He asserted that “this evidence created a genuine issue of material fact” as to the discovery date. The court noted “it is well-established that ‘a party may not create issues of fact through contradiction of that party’s prior sworn statements.’” It further noted that this “rule has typically been applied to contradictions between affidavits and deposition testimony.” But plaintiff did not cite any “authority permitting the party who drafted the complaint to disavow [its] contents to create a factual issue.” The court concluded “that for purposes of summary disposition, a plaintiff cannot disavow clear, intelligent, and unequivocal facts pleaded in his complaint in the absence of any explanation or modification, or of a showing of mistake or improvidence.” Thus, the court held that plaintiff “could not create an issue of fact by contradicting unequivocal facts in his complaint with his later affidavit, and the trial court erred by determining otherwise.” Affirmed.