Wood v. Bediako
Wood v. Bediako
Opinion of the Court
In this medical malpractice action, plaintiff appeals as of right an order granting defendants Alfred K. Bediako; Hillsdale Obstetrics & Gynecology, EC.; and Hillsdale Community Health Center (HCHC) summary disposition on the ground that plaintiff failed to file a valid affidavit of merit with her complaint and her action was therefore time-barred. We reverse and remand for further proceedings consistent with this opinion.
This case arose from the stillbirth of plaintiffs son Bradley Wood on June 6, 2003. Flaintiff was appointed personal representative on September 2, 2003. The complaint was served on defendants on August 4, 2004, with an attached affidavit of merit signed by a physician who was board-certified in obstetrics and gynecology. The affidavit was one of three originals prepared by plaintiffs counsel on July 22, 2004. Of these three originals, for reasons unknown and assumed to be clerical error, only two were notarized. The one unnotarized affidavit was attached to the complaint filed with the court, and the two notarized affidavits were kept in the files of plaintiffs counsel. Defendants’ answers to the complaint included the affirmative defense of lack of a proper affidavit of merit. HCHC moved for summary disposition on July 11,2005, on a basis not relevant to the instant appeal. Flaintiffs response contained a copy of one of the two original notarized affidavits as an exhibit.
On October 14, 2005, Bediako and Hillsdale Obstetrics (collectively referred to in this opinion as “Bediako”) moved for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10) on the ground that the unnotarized affidavit of merit attached to plaintiffs
The trial court cited the standards of review for summary disposition motions brought pursuant to MCR 2.116(C)(7), (C)(8), and (0(10). It implicitly granted summary disposition pursuant to MCR 2.116(C)(7) on the ground that the affidavit attached to the complaint was not notarized. It did not address the effect of plaintiffs subsequent serendipitous filing of a
In determining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), a court “ ‘must accept as true a plaintiffs well-pleaded factual allegations, affidavits, or other documentary evidence and construe them in the plaintiffs favor.’ ” Brennan v Edward D Jones & Co, 245 Mich App 156, 157; 626 NW2d 917 (2001), quoting Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 77; 592 NW2d 112 (1999). The interpretation and application of a statute of limitations presents a question of law, which is reviewed de novo. Pohutski v City of Allen Park, 465 Mich 675, 681; 641 NW2d 219 (2002). If the language of an applicable statute is clear, no further analysis is necessary or allowed. Id. at 683.
The period of limitations for a medical malpractice action is two years. MCL 600.5805(6). In a civil action, generally, the period of limitations is tolled and the action is commenced when a complaint is filed. Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000), citing MCR 2.101(B) and MCL 600.5856. However, to commence a medical malpractice action, and thus toll the period of limitations, a plaintiff must file both a complaint and an affidavit of merit. MCR 2.112(L); MCL 600.2912d(l). If a complaint and an affidavit of merit are not filed, the period of limitations is not tolled. Young v Sellers, 254 Mich App 447, 450; 657 NW2d 555 (2002). “To constitute a valid affidavit, a document must be (1) a written or printed declaration or statement of facts, (2) made voluntarily, and (3) confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Holmes v Michi
When a complaint is filed in a medical malpractice action without an affidavit of merit, the action is subject to dismissal without prejudice before the period of limitations has run. Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 47; 594 NW2d 455 (1999). There is no indication in the record that defendants sought dismissal on this ground before the running of the period of limitations. See MCR 2.116(C)(8); MCR 2.504(B)(1). In VandenBerg v VandenBerg, 231 Mich App 497, 498, 502; 586 NW2d 570 (1998), this Court found that MCL 600.2912d did not require dismissal for noncompliance when the plaintiff did not obtain an affidavit of merit until 21/2 months after she filed her medical malpractice complaint, but a copy of the affidavit was served with the summons and complaint.
Moreover, the Court recognized that the defendants were not prejudiced because “they had access to the affidavit of merit from the moment they received the complaint.” Id. at 503. We note here that although defendants did not have a valid affidavit, they did have notice of plaintiff’s theory of the case from the moment they received the complaint. Moreover, the trial court found that the unnotarized affidavit otherwise met the legal and medical requirements of the statute, and defendants did not challenge its sufficiency on these grounds. And, importantly, plaintiff remedied the lack of notarization when she later filed a notarized copy within the period of limitations. Hence, we conclude that defendants were not prejudiced by the delayed filing of the notarized affidavit. See Franchino v Franchino, 263 Mich App 172, 191; 687 NW2d 620 (2004) (observing that actual prejudice is not caused by delay alone; rather, it occurs when an amendment to a pleading would deny the opposing party a fair trial).
In Scarsella, supra at 550 n 1, our Supreme Court declined to overrule VandenBerg. Instead, it found VandenBerg factually and legally distinguishable because VandenBerg did not involve a statute of limitations issue. Hence, while the filing of a complaint without an affidavit of merit does not toll the period of limitations, and the subsequent filing of an affidavit after the limitations period has run does not relate back
Because a trial court is required to consider all admissible evidence then filed in the action when deciding a summary disposition motion pursuant to MCR 2.116(C)(7) and (10), see MCR 2.116(G)(5), we conclude that the court erred in failing to consider the subsequently filed notarized affidavit when it granted defendants summary disposition on the ground that the period of limitations was not tolled.
Reversed and remanded for further proceedings consistent with this opinion.
MCR 2.116(C)(1) and (C)(4) specify lack of personal and subject-matter jurisdiction, respectively, as grounds for summary disposition.
In Ward, supra at 520, this Court invoked the doctrine of equitable tolling when the plaintiffs counsel accidentally attached an affidavit of merit for another case to the complaint.
Plaintiff also challenged the timing of defendants’ motions because they were filed after the deadline for dispositive motions, and argued that defendants’ affirmative defense did not comply with the requirements of MCR 2.113(F)(1).
Additionally, this Court has considered the validity of affidavits not filed with complaints in other cases. In Mouradian v Goldberg, 256 Mich App 566, 571; 664 NW2d 805 (2003), two acts of malpractice were alleged, one for which the limitations period expired on November 13, 2000, and a second for which the limitations period expired on December 11, 2000. The plaintiffs filed a complaint for both acts on November 13, 2000, without an affidavit of merit. Id. at 568. The plaintiffs subsequently filed an affidavit of merit separately, on December 8, 2000. Id. Although it ultimately held that the affidavit did not toll the period of limitations because it was grossly nonconforming, this Court determined that, regarding the second act alleged, the separate filing, “on its face,... ‘completed’ ” the filing of the complaint before the limitations period expired on December 11, 2000. Id. at 572-574, quoting Searsella, supra at 550. In Holmes, supra at 710, the plaintiff filed an unsworn affidavit of merit several months after his complaint, before the expiration of the period of limitations. This Court examined the plaintiffs subsequently filed affidavit of merit for validity, even though it was filed after the complaint. Id. at 711.
Concurring Opinion
(concurring). I concur in the majority’s decision reversing the trial court’s order granting defendants summary disposition. I write separately because I do not deem the affidavit of merit filed with the complaint pursuant to MCL 600.2912d to be invalid. Consequently, I would not decide the question whether plaintiffs complaint should be dismissed for failure to file a valid affidavit of merit with the complaint.
MCL 600.2912d(l) provides in part that
the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiffs attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiffs attorney reasonably believes meets the requirements for an expert witness under section 2169. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the*566 plaintiffs attorney concerning the allegations contained in the notice....
In Holmes v Michigan Capital Med Ctr, 242 Mich App 703, 711; 620 NW2d 319 (2000), this Court addressed the formal requirements of an affidavit, stating, “To constitute a valid affidavit, a document must be (1) a written or printed declaration or statement of facts, (2) made voluntarily, and (3) confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.”
In this case, the affidavit of merit filed with the complaint did not contain a completed jurat, which is “[t]he clause written at the foot of an affidavit stating, when, where, and before whom such affidavit was sworn.” Black’s Law Dictionary (6th ed). “Jurat” is also defined as a “[cjertificate of officer or person before whom writing was sworn to,” which commonly designates a “certificate of competent administrating officer that writing was sworn to by person who signed it.” Id.
In Wise v Yunker, 223 Mich 203; 193 NW 890 (1923), our Supreme Court addressed a claim that an affidavit was invalid because the notary public failed to sign her name in the jurat. The Supreme Court reiterated the oft-cited rule governing defective jurats, stating:
“The jurat is simply a certificate evidencing the fact that the affidavit was properly made before a duly authorized officer. Although it has been said that strictly speaking it is no part of the affidavit, but simply evidence that the latter has been duly sworn to by the affiant, common prudence would dictate that a properly executed jurat be attached to every affidavit. Its omission, however, in the absence of a statute to the contrary, is not fatal to the validity of an affidavit, so long as it appears either from the rest of the instrument or from evidence aliunde[1 ] that the affidavit*567 was in fact duly sworn to before an authorized officer. This rule is based upon the principle that a party should not suffer by reason of the inadvertent omission of the officer to perform his duty.” [Wise, supra at 206, quoting 1 Ruling Case L, p 769.]
MCL 600.2912d(l) does not expressly require a jurat, but only “an affidavit of merit signed by a health professional....” Compare this with MCL 211.83(1) (“verified affidavit”) and MCR 2.113(A) (“an affidavit must be verified by oath or affirmation”). See also Merrifield v Paw Paw, 274 Mich 550, 552; 265 NW 461 (1936) (statute expressly required certified or verified complaint); Kelley v City of Flint, 251 Mich 691, 695-696; 232 NW2d 407 (1930) (ordinance required duly verified complaint).
The majority concludes that “the unnotarized affidavit filed with the complaint in this case was not valid” under MCL 600.2912d(l) for purposes of commencing a medical malpractice action. Ante at 563. In doing so, the majority relies on Holmes, which distinguished Wise on the basis that, “[i]n Wise[, supra], the affidavit in question was not, as here, completely devoid of a jurat.” Holmes, supra at 711-712. Admittedly, the affidavit of merit in this case is also completely devoid of a jurat. However, Holmes also stated that, “[b]ecause no indication exists that the doctor confirmed the document’s contents by oath or affirmation before a person authorized to issue the oath or affirmation, the document does not qualify as a proper affidavit.” Id. at 712.
Here, however, not only does evidence aliunde exist that Dr. Berke duly swore to the affidavit of merit before a notary public, but evidence of this event is contained in the lower court record. In response to one defendant’s
A careful reading of this test reveals no requirement that a notary public sign an affidavit; rather, the affidavit must be “confirmed by the oath or affirmation of the party making it____” Here the affidavit of merit indicates that “MICHAEL BERKE, M.D., being first duly sworn, deposed] and state[s] as follows____” Dr. Berke signed the affidavit. Further, the test merely provides that the affidavit of merit be “taken before a person having authority to administer such oath or affirmation,” not that the affidavit be signed or verified by the notary public. Accordingly, under the test stated in Holmes, I would find the affidavit of merit valid.
Finally, I conclude that the affidavit filed with the complaint was effective because there would be sufficient evidence to sustain a perjury charge, assuming statements in the affidavit were willfully false. See Clarke v Wayne Circuit Judge, 193 Mich 33, 35; 159 NW 387 (1916) (recognizing the contrapositive of this statement). MCL 750.423 provides:
Any person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, a felony, punishable by imprisonment in the state prison not more than 15 years.
Here, Dr. Berke is “authorized” as an expert under MCL 600.2912d to execute an affidavit of merit in
“Evidence aliunde” is defined as “[elvidence from outside, from another source. In certain cases a written instrument may be explained
Further, in cases cited by defendants, courts specifically indicated that the lower court record did not show that the affiant confirmed the affidavit’s content by oath or affirmation before a notary. See Holmes, supra at 712 (“[N]o indication exists that the doctor confirmed the document’s contents by oath or affirmation before the person authorized to issue the oath or affirmation... .”); Jewell v Pinson, unpublished opinion per curiam of the Court of Appeals, issued September 1, 2005 (Docket No. 255661), slip op at 1 (“[N]one of the affidavits were notarized, nor was there any indication that the affidavits were made under oath or affirmation.”) (emphasis added); see also Knobloch v Langholz, unpublished opinion per curiam of the Court of Appeals, issued June 21, 2002 (Docket No. 231070), slip op at 2 (“[P]laintiff provides no other evidence that [the affiant’s] statement was made before a person duly authorized to administer an oath.”).
Further, defendants’ reliance on Glancy v David Steinberg, unpublished opinion per curiam of the Court of Appeals, issued June 24, 2003) (Docket Nos. 237963 and 237976), is without merit. In Glancy, supra, slip op at 2, the notary public testified that “while she signed the jurat on each affidavit acknowledging that the affidavit was subscribed and sworn before her, she did not know either affiant, Gonzales or Thomas, she did not witness their signatures, she did not verify the affiants’ identities, and she did not administer an oath to either affiant.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.