Holmes v. Michigan Capital Medical Center

• Decision Date: 08 December 2000
• Docket Number: Docket No. 218270.,Docket No. 217975,Docket No. 217826,Docket No. 218240
• Citation: 620 N.W.2d 319,242 Mich. App. 703
• Parties: Michael C. HOLMES, Personal Representative of the Estate of Karen Holmes, Deceased, Plaintiff-Appellee, v. MICHIGAN CAPITAL MEDICAL CENTER, M. Jones, D.O., and Dr. Klepfsted, Defendants, and Olsten Health Care and Debra Waldie, R.N., B.S.N., Defendants-Appellants, Regina Malinowski and Raymond Malinowski, Jr., Plaintiffs-Appellees, v. Thomas Selznick, D.O., and Livonia Family Physicians, P.C., Defendants-Appellants. Michael C. Holmes, Personal Representative of the Estate of Karen Holmes, Deceased, Plaintiff-Appellee, v. Michigan Capital Medical Center, Olsten Health Care, and Debra Waldie, R.N., B.S.N., Defendants, and M. Jones, D.O., Defendant-Appellant. Michael C. Holmes, Personal Representative of the Estate of Karen Holmes, Deceased, Plaintiff-Appellee, v. Michigan Capital Medical Center, Defendant-Appellant, and M. Jones, D.O., Olsten Health Care, Debra Waldie, R.N., B.S.N., and Dr. Klepfsted, Defendants.
• Court: Court of Appeal of Michigan — District of US

620 N.W.2d 319

242 Mich. App. 703

Michael C. HOLMES, Personal Representative of the Estate of Karen Holmes, Deceased, Plaintiff-Appellee, v. MICHIGAN CAPITAL MEDICAL CENTER, M. Jones, D.O., and Dr. Klepfsted, Defendants, and Olsten Health Care and Debra Waldie, R.N., B.S.N., Defendants-Appellants, Regina Malinowski and Raymond Malinowski, Jr., Plaintiffs-Appellees, v. Thomas Selznick, D.O., and Livonia Family Physicians, P.C., Defendants-Appellants.

Michael C. Holmes, Personal Representative of the Estate of Karen Holmes, Deceased, Plaintiff-Appellee, v. Michigan Capital Medical Center, Olsten Health Care, and Debra Waldie, R.N., B.S.N., Defendants, and M. Jones, D.O., Defendant-Appellant.

Michael C. Holmes, Personal Representative of the Estate of Karen Holmes, Deceased, Plaintiff-Appellee, v. Michigan Capital Medical Center, Defendant-Appellant, and M. Jones, D.O., Olsten Health Care, Debra Waldie, R.N., B.S.N., and Dr. Klepfsted, Defendants.

Docket Nos. 217826, 217975, 218240, 218270.

Court of Appeals of Michigan.

Submitted June 13, 2000, at Lansing.

Decided October 10, 2000, at 9:05 a.m.

Released for Publication December 8, 2000.

Fieger, Fieger, Schwartz & Kenney, P.C. (by Geoffrey Nels Fieger and Rebecca H. Sinn), Southfield, for Michael C. Holmes.

Smith, Haughey, Rice & Roegge (by Jon D. Vander Ploeg), Grand Rapids, for Michigan Capital Medical Center.

Fraser Trebilcock Davis & Foster, P.C. (by Mark A. Bush), Lansing, for M. Jones, D.O.

Fajen and Miller, P.L.L.C. (by Richard B. Bailey and Nelson P. Miller), Ann Arbor, for Olsten Health Care and Debra Waldie, R.N., B.S.N.

Schwartz & Jalkanen, P.C. (by Arthur W. Jalkanen and Gregory A. Light), Southfield, for Thomas Selznick, D.O., and Livonia Family Physicians, P.C.

Before: GAGE, P.J., and GRIBBS and SAWYER, JJ.

PER CURIAM.

In these consolidated appeals involving medical malpractice cases, defendants-appellants appeal by leave granted from orders denying their motions for summary disposition. We reverse and remand because we conclude that in each case defendants-appellants were entitled to summary disposition pursuant to MCR 2.116(C)(7) (claim barred because of statute of limitations).

Each defendant asserts entitlement to summary disposition on the basis that plaintiffs failed to file with their complaints affidavits of merit required by M.C.L. § 600.2912d; MSA 27A.2912(4), and thus failed to timely file proper complaints within the statutory limitation period. We review de novo decisions regarding summary disposition. Rheaume v. Vandenberg, 232 Mich.App. 417, 420-421, 591 N.W.2d 331 (1998). In deciding a motion made under MCR. 2.116(C)(7), a court should consider all affidavits, pleadings, and other documentary evidence submitted by the parties. Rheaume, supra at 421, 591 N.W.2d 331. If the pleadings or other documentary evidence reveal no genuine issues of material fact, the court must decide as a matter of law whether the claim is statutorily barred. Asher v. Exxon Co., USA, 200 Mich.App. 635, 638, 504 N.W.2d 728 (1993).

"[T]he plaintiff in an action alleging medical malpractice ... 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." MCL 600.2912d(1); MSA 27A.2912(4)(1). These appeals present the central issue whether a complaint filed without an affidavit of merit tolls the applicable limitation period. In Scarsella v. Pollak, 232 Mich.App. 61, 591 N.W.2d 257 (1998), aff'd. 461 Mich. 547, 607 N.W.2d 711 (2000), this Court held that a medical malpractice complaint filed without an affidavit of merit "is insufficient to commence the lawsuit." Id. at 64, 591 N.W.2d 257. When a plaintiff fails to comply with the affidavit of merit requirement but the limitation period has not yet expired, dismissal of the complaint without prejudice may constitute an appropriate remedy, leaving the plaintiff free to refile the complaint together with an affidavit of merit. Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 47-48, 594 N.W.2d 455 (1999). If the claim is time-barred, however, the complaint should be dismissed with prejudice. Scarsella, supra.

Docket No. 217975

Plaintiffs Regina Malinowski and Raymond Malinowski, Jr., alleged that on May 19, 1995, defendants Thomas Selznick, D.O., and Livonia Family Physicians, P.C., failed to properly diagnose and treat Raymond Malinowski's impending myocardial infarction. On May 9, 1997, ten days before the two-year limitation period expired, plaintiffs served a notice of intent to file a claim. MCL 600.2912b; MSA 27A.2912(2). This notice tolled the limitation period for 182 days, which notice period ended on November 7, 1997. MCL 600.2912b(1), 600.5856(d); MSA 27A.2912(2)(1), 27A.5856(d). Plaintiffs filed their complaint on November 12, 1997, but attached no affidavit of merit. On April 20, 1998, plaintiffs provided defendant an affidavit of merit.

Defendants moved for summary disposition, arguing that plaintiffs' complaint was time-barred and should be dismissed because plaintiffs failed to file the required affidavit of merit. The trial court denied defendants' motion apparently on the basis of the parties' inadequate documentation of their positions. After this Court issued its Scarsella opinion, defendants renewed their motion, which the trial court again denied. The court found that plaintiffs complied with the statute because they had an unspecified "good cause" for the late filing of their affidavit of merit, and that the limitation period was tolled because the affidavit of merit related back to the filing date of the complaint.

The trial court incorrectly reasoned that plaintiffs had good cause for the late filing of the affidavit. An exception to the mandatory requirement that plaintiffs file an affidavit of merit with their complaint exists in M.C.L. § 600.2912d(2); MSA 27A.2912(4)(2), which provides that "for good cause shown" plaintiffs may move for a twenty-eight-day extension to file their affidavit of merit. No indication exists within the instant record, however, that plaintiffs ever sought or were granted an extension by the trial court. Even if such an extension was granted, plaintiffs should have filed their affidavit of merit no later than December 15, 1997.

The trial court also erroneously determined that plaintiffs' April 20, 1998, affidavit of merit related back to the filing date of the complaint. This Court in Scarsella expressly considered and rejected this contention:

Plaintiff contends that he should have been allowed to amend his September 22, 1996, complaint by appending 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 plaintiff's 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 M.C.L. § 600.2912d(1); MSA 27A.2912(4)(1), that the plaintiff "shall file with the complaint an affidavit of merit," as well as the legislative remedy of M.C.L. § 600.2912d(2); MSA 27A.2912(4)(2), allowing a twenty-eight-day extension in instances where an affidavit cannot accompany the complaint. [Scarsella, supra, 232 Mich.App. at 65,

591 N.W.2d 257.]

Furthermore, the trial court misplaced its reliance on VandenBerg v. VandenBerg, 231 Mich.App. 497, 586 N.W.2d 570 (1998), in finding that dismissal of plaintiffs' complaint is not mandatory where plaintiffs failed to comply with M.C.L. § 600.2912d; MSA 27A.2912(4). The VandenBerg plaintiff failed to file an affidavit of merit with the complaint, but served the defendant the complaint and the affidavit before the limitation period expired. Id. at 498, 586 N.W.2d 570. As this Court stated in Scarsella, however, VandenBerg is factually and legally distinguishable from a case like the instant case involving plaintiffs who never timely filed or served an affidavit of merit. Scarsella, supra at 64, n. 1, 591 N.W.2d 257. Like the Scarsella plaintiff and unlike the VandenBerg plaintiff, plaintiffs in this case failed to properly commence their action within the applicable limitation period. Because plaintiffs failed to comply with M.C.L. § 600.2912d; MSA 27A.2912(4) by filing an affidavit of merit with their complaint or by requesting an extension of time in which to file their affidavit, the limitation period was not tolled and it expired on November 17, 1997. Plaintiffs' claim was time-barred because plaintiffs' April 20, 1998, attempt to remedy their failure to file the affidavit of merit occurred beyond the limitation period. Scarsella, supra at 64, 591 N.W.2d 257.

We conclude that the trial court erred in failing to grant defendants summary disposition pursuant to MCR 2.116(C)(7).¹

Docket Nos. 217826, 218240, 218270

Plaintiff Michael C. Holmes alleged that defendants-appellants Olsten Health Care, Debra Waldie, R.N., Michigan Capital Medical Center, and M. Jones, D.O., failed to diagnose and treat the decedent Karen Holmes' deep vein thrombosis, which resulted in her death from a pulmonary embolism. Plaintiff was appointed personal representative of the estate of the decedent on February 8, 1995, giving him until February 8, 1997, before the limitation period would expire. MCL 600.5852; MSA 27A.5852. Plaintiff filed his initial complaint on March 27, 1996, but did not include an affidavit of merit. Plaintiff apparently provided an unsworn affidavit on December 16, 1996, but his complaint was dismissed without prejudice in January 1997. On January 27, 1997, plaintiff filed a second complaint, again unaccompanied by an affidavit...