Apsey v. Memorial Hosp.

• Citation: 266 Mich. App. 666,702 N.W.2d 870
• Decision Date: 25 August 2005
• Docket Number: Docket No. 251110.
• Parties: Sue H. APSEY and Robert Apsey, Jr., Plaintiffs-Appellants, v. MEMORIAL HOSPITAL, d/b/a Memorial Healthcare Center, Russell H. Tobe, D.O., James H. Deering, D.O., and James H. Deering, D.O., P.C., d/b/a Shiawassee Radiology Consultants, P.C., Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

702 N.W.2d 870

266 Mich. App. 666

Sue H. APSEY and Robert Apsey, Jr., Plaintiffs-Appellants, v. MEMORIAL HOSPITAL, d/b/a Memorial Healthcare Center, Russell H. Tobe, D.O., James H. Deering, D.O., and James H. Deering, D.O., P.C., d/b/a Shiawassee Radiology Consultants, P.C., Defendants-Appellees.

Docket No. 251110.

Court of Appeals of Michigan.

Submitted April 6, 2005, at Lansing.

Decided June 9, 2005, at 9:05 a.m.

Released for Publication August 25, 2005.

Jeffery S. Zilinski, Burton, for Sue H. Apsey and Robert Apsey, Jr.

Cline, Cline, Griffin (by Glenn M. Simmington and Jose T. Brown), Flint, for Memorial Hospital.

Hackney Grover Hoover & Bean (by Randy J. Hackney and Loretta B. Subhi), East Lansing, for Russell H. Tobe, D.O.

Willingham & Coté, P.C. (by Ray Foresman, Michael W. Stephenson, and Matthew K. Payok), East Lansing, for James H. Deering, D.O.; and Shiawassee Radiology Consultants, P.C.

Linda M. Galante, Grosse Pointe Park, for the Michigan Trial Lawyers Association, amicus curiae.

Charfoos & Christensen, P.C. (by David R. Parker), Detroit, for the State Bar of Michigan Negligence Section and the State Bar of Michigan Elder Law Section, amici curiae.

Daniel W. Sherrick, Detroit, for International Union, UAW, amicus curiae.

Olsman, Mueller & James, P.C. (by Jules B. Olsman and Phyllis A. Figiel), Berkley, for Citizens for Better Care, amicus curiae.

The Googasian Firm, P.C. (by George A. Googasian and Dean M. Googasian), Bloomfield Hills, for the State of Bar of Michigan, amicus curiae.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Robert Welliver and Heather S. Meingast, Assistant Attorneys General, for the Department of Community Health, amicus curiae.

Kerr, Russell and Weber, P.L.C. (by Joanne Geha Swanson, Daniel J. Schulte, and Michael A. Sneyd), Detroit, for the Michigan State Medical Society, amicus curiae.

Maddin, Hauser, Wartell, Roth & Heller, P.C. (by Mark H. Fink), Southfield, for Michigan Defense Trial Counsel, amicus curiae.

Before: MARK J. CAVANAGH, P.J., and JANSEN and GAGE, JJ.

ON RECONSIDERATION

JANSEN, J.

Plaintiffs, Sue H. Apsey and Robert Apsey, Jr., appeal as of right a circuit court order granting summary disposition for defendants, Memorial Hospital, doing business in Owosso as Memorial Healthcare Center; two of its practitioners, doctors Russell H. Tobe and James H. Deering; and the business entities under which they practice. We reverse and remand for further proceedings.

Plaintiffs commenced this action in November 2001, stating that Sue Apsey was admitted to Memorial Healthcare Center for an "exploratory laparotomy," which resulted in the removal of a large ovarian cyst. Various complications followed. Plaintiffs allege that misdiagnoses and errant reporting attendant to those complications caused Sue Apsey to become "septic," requiring several follow-up surgeries.

Plaintiffs' affidavit of merit was prepared in Pennsylvania, using a notary public of that state. A normal notarial seal appears on the document, and it is not disputed that plaintiffs initially provided no special certification to authenticate the credentials of the out-of-state notary public. Instead, plaintiffs provided that certification after the period of limitations had run on their cause of action. Defendants moved in the trial court for summary disposition with regard to plaintiffs' medical malpractice claims, citing M.C.L. §§ 600.2912d and 600.2102. In granting the motions, the court reasoned that the failure to provide the special certification was fatal to the notarization and, thus, that the affidavit itself was a nullity, rendering plaintiffs' complaint invalid.

At issue in this appeal is whether M.C.L. § 565.262, the general statute concerning notarial acts, governs affidavits of merit in medical malpractice cases, or whether the more demanding requirements of M.C.L. § 600.2102 apply. Plaintiffs contend that the trial court erred by granting defendants' motions for summary disposition and holding that an out-of-state affidavit of merit in a medical malpractice case not only must be notarized, but also must be accompanied by a certificate setting forth the notary's authority.

This Court reviews de novo a trial court's decision on a motion for summary disposition as a question of law. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003); Ardt v. Titan Ins. Co., 233 Mich.App. 685, 688, 593 N.W.2d 215 (1999). Statutory interpretation likewise presents a question of law, calling for review de novo. Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 32, 658 N.W.2d 139 (2003); Haworth, Inc. v. Wickes Mfg. Co., 210 Mich.App. 222, 227, 532 N.W.2d 903 (1995).

M.C.L. § 600.2912d(1) provides, in part:

[T]he plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness.... 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 plaintiff's attorney concerning the allegations contained in the notice....

Subsections 1(a) through (d) set forth the particulars to which the expert must attest. An affidavit for these purposes must be "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. Michigan Capital Med. Ctr., 242 Mich.App. 703, 711, 620 N.W.2d 319 (2000). In the medical malpractice context, a valid affidavit of merit must be filed with the complaint in order to commence an action and to toll the period of limitations. Scarsella v. Pollak, 461 Mich. 547, 552-553, 607 N.W.2d 711 (2000).

In this case, neither the need for an affidavit of merit nor the requirement that one be notarized is in dispute. The controversy, instead, concerns what constitutes a valid out-of-state notarization.

In 1924, our Supreme Court reiterated the legislative requirement that, if an affidavit submitted to a court is authenticated by an out-of-state notary public, in order for the court to consider the affidavit, the signature of the sister-state notary public must be certified by the clerk of the court of record in the county in which the affidavit was executed. In re Alston's Estate, 229 Mich. 478, 480-482, 201 N.W. 460 (1924). Similarly, M.C.L. § 600.2102, effective in 1963, states that "where by law the affidavit of any person residing in another state ... is required, or may be received in judicial proceedings in this state, to entitle the same to be read, it must be authenticated...." M.C.L. § 600.2102(4) specifies that an affidavit taken in a sister state

may be taken before ... any notary public ... authorized by the laws of such state to administer oaths therein. The signature of such notary public ... shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court.

This language closely mirrors that which was construed by our Supreme Court in In re Alston's Estate, supra at 481, 201 N.W. 460; see also Wallace v. Wallace, 23 Mich. App. 741, 744-745, 179 N.W.2d 699 (1970).

Effective in 1970, Michigan adopted the Uniform Recognition of Acknowledgements Act (URAA), M.C.L. § 565.261 et seq. "Notarial acts" are defined as "acts that the laws of this state authorize notaries public of this state to perform, including... taking proof of execution and acknowledgements of instruments, and attesting documents." M.C.L. § 565.262(a). The URAA provides that notarial acts performed in a sister state may function in this state as if performed by a Michigan notary public if performed by "[a] notary public authorized to perform notarial acts in the place in which the act is performed." M.C.L. § 565.262(a)(i). M.C.L. § 565.263(1) of the URAA provides:

If the notarial act is performed by any of the persons described in subdivisions (a) to (d) [sic] of section 2, other than a person authorized to perform notarial acts by the laws or regulations of a foreign country, the signature, rank or title and serial number, if any, of the person are sufficient proof of the authority of a holder of that rank or title to perform the act. Further proof of his authority is not required.

M.C.L. § 565.263(4) states that "[t]he signature and title of the person performing the act are prima facie evidence that he is a person with the designated title and that the signature is genuine."

If the present inquiry were to be decided on the basis of the URAA, the notarization of the affidavit in question would indisputably be valid. Plaintiffs' affidavit of merit bears the signature and notary seal of a Pennsylvania notary public. That status in another state carries over to this state, and the signature and the title are prima facie evidence of authenticity, M.C.L. § 565.263(4). But the signature and the notary seal do not satisfy the requirements set forth in M.C.L. § 600.2102(4). The question, then, is whether M.C.L. § 565.262 affects M.C.L. § 600.2102, and, if so, in what manner.

When this issue was initially raised before the trial court, only the applicability of M.C.L. § 600.2102 was argued. The court recognized the inflexibility of that statute and decided to grant summary disposition. In a subsequent hearing that the court treated as a motion for reconsideration, plaintiffs argued that M.C.L. § 565.262 should apply to the exclusion of M.C.L. § 600.2102. The court was not persuaded, and, without elaboration, stated that arguments concerning M.C.L. § 565.262 would not have changed its earlier decision.

Defendant Deering argues that the specific mention of affidavits in M.C.L. § 600.2102 indicates greater legislative specificity than the general mention of notarial acts in M.C.L....