Potter v. McLeary
Potter v. McLeary
Opinion of the Court
In these consolidated appeals, defendants appeal by leave granted the trial court’s orders denying their motions for summary disposition pursuant to MCR 2.116(C)(7). The dispositive issue on appeal in this medical malpractice action is whether plaintiffs affidavits of merit complied with the requirements of MCL 600.2912d. Because they did not, we reverse.
The alleged malpractice took place on June 7, 2001. The statute of limitations in medical malpractice cases is two years from the date the claim accrued. MCL 600.5805(6). Presuming the notice of intent was sufficient,
Plaintiff submitted two affidavits of merit with his complaint. Both were signed by appropriately certified medical professionals. They included specific statements of the standard of care, indications of how that standard was breached, and what actions should have been taken to comply with the standard of care. However, both affidavits are devoid of any statement on
We reject plaintiffs contention that, under MCL 600.2301, retroactive amendment of the nonconforming affidavit of merit should be permitted so that plaintiffs cause of action would no longer be barred by the statute of limitations. MCL 600.2301 provides:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.
In Mouradian, this Court, quoting from Scarsella II, concluded that the trial court did not abuse its discretion when it denied plaintiffs request to permit the filing of an amended affidavit that would relate back to the date the complaint was filed:
“Plaintiff contends that he should have been allowed to amend his September 22, 1996, complaint by appending*226 the untimely affidavit of merit. He reasons that such an amendment would relate back, see MCR 2.118(D), making timely the newly completed complaint. We reject this argument for the reason that it effectively repeals the statutory affidavit of merit requirement. Were we to accept plaintiffs contention, medical malpractice plaintiffs could routinely file their complaints without an affidavit of merit, in contravention of the court rule and the statutory requirement, and ‘amend’ by supplementing the filing with an affidavit at some later date. This, of course, completely subverts the requirement of MCL 600.2912d(l). .. that the plaintiff ‘shall file with the complaint an affidavit of merit,’ as well as the legislative remedy of MCL 600.2912d(2)... allowing a twenty-eight-day extension in instances where an affidavit cannot accompany the complaint.” [Mouradian, supra at 575, quoting Scarsella II, supra at 550, quoting Scarsella v Pollak, 232 Mich App 61, 65; 591 NW2d 257 (1998) (Scarsella I).]
We adopt this reasoning here, and find unpersuasive our dissenting colleague’s view that the instant case is distinguishable from Scarsella II and Mouradian. MCL 600.2912d(l) expressly requires that a plaintiff “shall” file an affidavit of merit with the complaint at the commencement of the lawsuit. The purpose of this requirement is “to ensure trustworthy medical expert testimony and to discourage frivolous lawsuits.” Nippa v Botsford Gen Hosp (On Remand), 257 Mich App 387, 394; 668 NW2d 628 (2003). To this end, a complaint filed without the requisite conforming affidavit is insufficient to sustain a lawsuit, and therefore, the period of limitations is not tolled under these circumstances. Scarsella II, supra at 553. Permitting the plaintiff to amend his nonconforming affidavits by providing the omitted and required statements on proximate cause, and then permitting the amended affidavits to relate back to the initial filing of the complaint, completely subverts the affidavit requirement established by MCL
Because this issue is dispositive, we need not reach the other issues raised on appeal.
Reversed.
Although sufficiency of the notices of intent is raised as an issue, we find it unnecessary to address it under the circumstances.
Dissenting Opinion
(dissenting). I agree with the majority that the affidavits of merit filed in this case were defective. As counsel essentially conceded at oral argument, they did not contain any statement whatsoever on proximate cause because they did not state how the physicians’ alleged failures related to plaintiffs alleged injuries. Because no conforming affidavit was filed before December 8, 2003, when the limitations period expired, summary disposition under MCR 2.116(C)(7) was ostensibly appropriate.
However, I respectfully disagree with the majority’s dismissal of the possibility of retroactive amendment of the nonconforming affidavits under MCL 600.2301, which states as follows:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in*228 such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.
This statute, or its substantially identical predecessor, has been part of Michigan statutory law for almost a century.
Since Scarsella, this Court has concluded that a “grossly nonconforming” affidavit does not count as an affidavit of merit under the statute. Saffian v Simmons, 267 Mich App 297, 302-303; 704 NW2d 722 (2005). However, those cases that subsequently relied on Scarsella did not address the significant distinction: where an affidavit is actually filed, even if it is eventually ruled defective for one reason or another, it never
The general rule created by MCL 600.2301 and its predecessors is that leave to amend the pleadings “should be denied only in the face of undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or futility.” Dowerk v Oxford Charter Twp, 233 Mich App 62, 75; 592 NW2d 724 (1998). The goal of this rule is to dispose of cases on the basis of parties’ substantial rights, rather than on technical errors. Gratiot Lumber & Coal Co v Lubinski, 309 Mich 662, 668-669; 16 NW2d 112 (1944). However, “such amendments are not allowed when prejudice would result and when the substantial rights of the parties would be affected adversely.” Phillips v Rolston, 376 Mich 264, 268; 137 NW2d 158 (1965).
Statutes of limitations are generally considered procedural, not substantive. People v Sinclair, 247 Mich App 685, 689; 638 NW2d 120 (2001). However, this is only true while the limitations periods are still running; once the limitations period has completely run, the right to defeat a cause of action becomes vested. In re Straight’s Estate, 329 Mich 319, 325; 45 NW2d 300 (1951); Gorte v Dep’t of Transportation, 202 Mich App 161, 167; 507 NW2d 797 (1993). A trial court therefore may not “permit an amendment which states a cause of action barred by the statute of limitations.” Bockoff v Curtis, 241 Mich 553, 558; 217 NW 750 (1928).
However, this only precludes stating a completely new cause of action. If “the transactional base of the
I see no such limitation here. None of the defendants has challenged whether plaintiffs notices of intent
MCL 600.2301 and its predecessors set forth a clear policy that our jurisprudence seeks to resolve disputes on their merits, not on technicalities. It mandates that
I recognize the majority’s argument that doing so would eviscerate the Legislature’s remedy under MCL 600.2912d(2). See Mouradian v Goldberg, 256 Mich App 566, 575; 664 NW2d 805 (2003). However, I am not convinced by it. Again, the situation before us is different. This is not a case where plaintiff simply filed a bare complaint without an affidavit and now seeks to go back in time to insert one into the lower court record. This is a case where plaintiff did file an affidavit, albeit a defective one, and moreover had previously filed notices of intent that adequately set forth the missing information. An affidavit actually existed in the record, as did the information the affidavit should have contained.
Where correcting a technical defect would not inflict unfair prejudice on the other party, I would adhere to our legal system’s longstanding and honorable goal of resolving disputes on their merits.
A version of this statute, including only the first sentence, was part of the 1846 Bevised Statutes, Chapter 104, § 1. The Legislature added the second sentence when it enacted 314 PA 1915, which became 1915 CL 12478,1929 CL 14144, and 1948 CL 616. A few inconsequential changes, like using the words “shall be” instead of “is” or “are,” were made when it was re-enacted by 236 PA 1961. Because I cannot view these changes as substantive, any cases interpreting or applying the 1915 version of this statute must remain applicable today.
I recognize, as does the majority, that defendants have raised a challenge to the sufficiency of the notices of intent. However, that challenge is limited to other grounds.
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