Apsey v. Memorial Hospital, No. 251110 (MI 6/9/2005)
| Decision Date | 09 June 2005 |
| Docket Number | No. 251110,251110 |
| 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 | Michigan Supreme Court |
Appeal from the Shiawassee Circuit Court, LC No. 01-007289-NH.
Before: Cavanagh, P.J., and Jansen and Gage, JJ.
ON RECONSIDERATION
Plaintiffs, Sue H. Apsey and Robert Apsey, Jr., appeal as of right from a circuit order granting summary disposition to defendants, Memorial Hospital, doing business 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 motioned the trial court for summary disposition with regard to plaintiffs' medical malpractice claims, citing MCL 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 MCL 565.262, the general statute concerning notarial acts, governs affidavits of merit in medical malpractice cases, or whether the more demanding requirements of MCL 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 a trial court's decision on a motion for summary disposition de novo as a question of law. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003); Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 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 NW2d 139 (2003); Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 227; 532 NW2d 903 (1995).
MCL 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) go on to 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 NW2d 319 (2000). In the medical malpractice context, a valid affidavit of merit must be filed with the complaint in order to commence action and toll the period of limitations. Scarsella v Pollak, 461 Mich 547, 552-553; 607 NW2d 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 where the affidavit was executed. In re Alston's Estate, 229 Mich 478, 480-482; 201 NW 460 (1924). Similarly, MCL 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 . . . ." MCL 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 construed by our Supreme Court in In re Alston's Estate, supra at 481; see also Wallace v Wallace, 23 Mich App 741, 744-745; 179 NW2d 699 (1970).
Effective in 1970, Michigan adopted the Uniform Recognition of Acknowledgements Act (URAA), MCL 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." MCL 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." MCL 565.262(a)(i). MCL 565.263(1) of the URAA provides:
If the notarial act is performed by any of the persons described in subdivisions (a) to (d) 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.
MCL 565.263(4) states that the "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 title are prima facie evidence of authenticity, MCL 565.263(4). But the signature and notary seal do not satisfy the requirements set forth in MCL 600.2102(4). The question, then, is whether MCL 565.262 affects MCL 600.2102, and, if so, in what manner.
When this issue was initially raised before the trial court, only the applicability of MCL 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 MCL 565.262 should apply to the exclusion of MCL 600.2102. The court was not persuaded, and, without elaboration, stated that arguments concerning MCL 565.262 would not have changed its earlier decision.
Defendant Deering argues that the specific mention of affidavits in MCL 600.2102 indicates greater legislative specificity than the general mention of notarial acts in MCL 565.262. However, the general language of the latter is obviously a consequence of the statute covering acts performed in some cases by persons other than notaries public and coverage of notarial acts performed on documents other than affidavits. The primary purpose of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Haworth, supra at 227. Notaries public, both in and out of state, are expressly mentioned in MCL 565.262(a), along with the function of "attesting documents." Affidavits, and the role of the notary public in executing them, are obviously envisioned.
Both plaintiffs and defendants raise issues regarding the placement of the statutes. "[T]he meaning of the Legislature is to be found in the terms and arrangement of the statute without straining or refinement, and the expressions used are to be taken in their natural and ordinary sense." Gross v Gen Motors Corp, 448 Mich 147, 160; 528 NW2d 707 (1995) (emphasis added). It is well, then, to note the structural placement of the two statutory schemes.
The URAA appears among statutes governing conveyances of real property. The emphasis, then, is not on documents submitted to Michigan courts, but on documents that have potentially great legal significance in other contexts, e.g., memorializing agreements or recording conveyances and interests. However, contrary to defendants' contentions, we find that the URAA and its requirements are not limited to conveyances of real property.
MCL 600.2102 appears within the Revised Judicature Act, MCL 600.101 et seq., and retains its predecessor's language concerning affidavits "received in judicial proceedings," which our Supreme Court construed as strictly requiring that special certification accompany notarizations by out-of-state...
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Estate of Hubka v. Defever, No. 274857 (Mich. App. 2/14/2008), 274857.
...Recognition of Acknowledgements Act ("URAA"), MCL 565.261 et seq. Relying on this Court's decision in Apsey v Mem Hosp (On Reconsideration), 266 Mich App 666; 702 NW2d 870 (2005), rev'd 477 Mich 120 (2007), the trial court determined that Dr. Brown's affidavit of merit was defective because......