Kirkaldy v. Rim, Docket No. 225735.

• Decision Date: 25 August 2005
• Docket Number: Docket No. 225735.
• Citation: 266 Mich App 626,702 N.W.2d 686
• Parties: Mary KIRKALDY and William Kirkaldy, Plaintiffs-Appellees Cross-Appellants, v. Choon Soo RIM, M.D., and Rim & Sol, M.D., P.C., Defendants-Cross Appellees, and Raina M. Ernstoff, M.D., and Raina M. Ernstoff, M.D., P.C., Defendants-Appellants Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

702 N.W.2d 686

266 Mich App 626

Mary KIRKALDY and William Kirkaldy, Plaintiffs-Appellees Cross-Appellants, v. Choon Soo RIM, M.D., and Rim & Sol, M.D., P.C., Defendants-Cross Appellees, and Raina M. Ernstoff, M.D., and Raina M. Ernstoff, M.D., P.C., Defendants-Appellants Cross-Appellees.

Docket No. 225735.

Court of Appeals of Michigan.

Submitted January 6, 2005, at Lansing.

Decided June 7, 2005, at 9:00 a.m.

Released for Publication August 25, 2005.

Mark Granzotto, P.C. (by Mark Granzotto), and Sheldon D. Erlich, Royal Oak, Southfield, for the plaintiffs.

Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), Southfield, for Choon Soo Rim, M.D.; and Rim and Sol, M.D., P.C.

Saurbier, Siegan & Sanfield, P.C. (by Renée S. Siegan and Valerie Henning Mock), St. Clair Shores, for Raina M. Ernstoff, M.D.; and Raina M. Ernstoff, M.D., P.C.

Before: KELLY, P.J., and MURPHY and MARK J. CAVANAGH, JJ.

ON REMAND

MURPHY, J.

We reverse on remand in this medical malpractice action on the basis of Scarsella v. Pollak, 461 Mich. 547, 607 N.W.2d 711 (2000), and its progeny Geralds v. Munson Healthcare, 259 Mich.App. 225, 673 N.W.2d 792 (2003), and Mouradian v. Goldberg, 256 Mich.App. 566, 664 N.W.2d 805 (2003). However, we respectfully voice our belief that Scarsella is inconsistent with the clear and unambiguous language of MCL 600.5856(a), to encourage the Supreme Court to reexamine its holding or consider how its holding is being applied, and that Geralds, if not contrary to Scarsella, goes far beyond the realm contemplated in Scarsella.

The factual background of this case is set forth in our original opinion, in which we affirmed the trial court's order dismissing plaintiffs' medical malpractice action without prejudice in light of the fact that plaintiffs' affidavit of merit was executed by a board-certified neurosurgeon, rather than a board-certified neurologist, as were defendants. 251 Mich.App. 570, 651 N.W.2d 80 (2002).¹ The Michigan Supreme Court remanded, directing us to consider "defendants' argument that the statute of limitations was not tolled by the filing of the plaintiffs' defective affidavit of merit and that, as a result, they are entitled to dismissal with prejudice. MCR 7.302(G)(1). See [Geralds, supra]." 471 Mich. 924, 689 N.W.2d 228 (2004).

MCL 600.2912d(1) provides that, in medical malpractice actions, a plaintiff or 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 under [MCL 600.2169]." Subsection 1 of § 2912d further provides:

[T]he 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 and shall contain a statement of each of the following:

(a) The applicable standard of practice or care.

(b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.

(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.

(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.

The appropriate remedy for failure to comply with § 2912d is dismissal without prejudice. Scarsella, supra at 551-552, 607 N.W.2d 711. "However, such a plaintiff still must comply with the applicable period of limitation." Id. at 552, 607 N.W.2d 711. The Legislature has provided that the period of limitations is tolled "[a]t the time the complaint is filed and a copy of the summons and complaint are served on the defendant. . . ." MCL 600.5856(a).

In Scarsella, the plaintiff failed to file any affidavit of merit with his complaint. Although the complaint was filed within the applicable period of limitations, the limitations period eventually expired with no affidavit of merit forthcoming. Our Supreme Court adopted, in its entirety, the opinion of this Court² in that case, which included the determination of law "`that, for statute of limitations purposes in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit.'" Scarsella, supra at 549, 607 N.W.2d 711 (citations omitted). Relying on the mandatory language of MCL 600.2912d, and taking into consideration MCL 600.5856, the Supreme Court, again quoting this Court's opinion, held that, because the filing of the complaint without the required affidavit was insufficient to initiate the plaintiff's malpractice action, there was no tolling of the limitations period. Scarsella, supra at 550, 607 N.W.2d 711 (citation omitted).

The Supreme Court in Scarsella then added its own points of clarification, stating that a medical malpractice complaint filed without the required affidavit is subject to dismissal without prejudice, but the plaintiff must still comply with the statute of limitations. Id. at 551-552, 607 N.W.2d 711. The Court noted:

Today, we address only the situation in which a medical malpractice plaintiff wholly omits to file the affidavit required by MCL 600.2912d(1). . . . In such an instance, the filing of the complaint is ineffective, and does not work a tolling of the applicable period of limitation. This holding does not extend to a situation in which a court subsequently determines that a timely filed affidavit is inadequate or defective. [Scarsella, supra at 553, 607 N.W.2d 711 (emphasis added).]

The Supreme Court stated in a footnote to the above-quoted language, "We do not decide today how well the affidavit must be framed. Whether a timely filed affidavit that is grossly nonconforming to the statute tolls the statute is a question we save for later decisional development." Id. at 553 n. 7, 607 N.W.2d 711 (emphasis deleted). The Court's holding that the decision did not extend to situations in which a court subsequently finds that a timely filed affidavit is inadequate or defective, when considered with the additional footnote language, suggests that the Supreme Court would find that a nonconforming affidavit of merit deemed not to be "grossly" nonconforming would indeed toll the period of limitations. This is an arguable and reasonable interpretation of the Scarsella ruling. On the other hand, it is also arguable and reasonable to conclude that the Court was declining to take a position one way or another regarding the filing of defective affidavits in general.

Although the Scarsella decision is now five years old, it has formed the basis for the dismissal of more recently decided actions predicated on failure to file an affidavit of merit, as was the situation in Scarsella, see, e.g., Young v. Sellers, 254 Mich.App. 447, 657 N.W.2d 555 (2002),

and failure to file statutorily compliant affidavits as in Geralds, which goes beyond the holding in Scarsella. We believe that the Supreme Court should reexamine the holding in Scarsella when given the opportunity, if not to question whether the decision was consistent with well-established principles of statutory construction, then to determine whether it was proper for this Court to extend the holding to cases in which an affidavit of merit, ultimately found to be nonconforming, was actually filed with the complaint.

In Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 63, 642 N.W.2d 663 (2002), the Michigan Supreme Court noted the following principles of statutory construction:

An anchoring rule of jurisprudence, and the foremost rule of statutory construction, is that courts are to effect the intent of the Legislature. To do so, we begin with an examination of the language of the statute. If the statute's language is clear and unambiguous, then we assume that the Legislature intended its plain meaning and the statute is enforced as written. A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. [Citations omitted; emphasis added.]

Our Supreme Court has reiterated clearly and often that the courts of this state may read nothing into an unambiguous statute. See, e.g., Halloran v. Bhan, 470 Mich. 572, 577, 683 N.W.2d 129 (2004); Neal v. Wilkes, 470 Mich. 661, 670 n. 13, 685 N.W.2d 648 (2004) ("Plaintiff . . . is adding words to the act that simply are not there."); People v. Phillips, 469 Mich. 390, 395, 666 N.W.2d 657 (2003); People v. Davis, 468 Mich. 77, 79, 658 N.W.2d 800 (2003); State Farm Fire & Cas. Co. v. Old Republic Ins. Co., 466 Mich. 142, 146, 644 N.W.2d 715 (2002) ("Because the proper role of the judiciary is to interpret and not to write the law, courts do not have authority to venture beyond the unambiguous text of a statute."); Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002) (an unambiguous statute must be enforced as written); Omne Financial, Inc. v. Shacks, Inc., 460 Mich. 305, 311-312, 596 N.W.2d 591 (1999) (courts may not speculate regarding legislative intent beyond the plain meaning of a statute).

Once again, MCL 600.5856(a) provides that periods of limitations are tolled "[a]t the time the complaint is filed, if a copy of the summons and complaint are served on the defendant. . . ." There is no language providing that a limitations period is tolled only when a complaint and an affidavit of merit are filed.

The Scarsella Court maintained that to hold otherwise would undo the Legislature's clear statement that an affidavit of merit "shall" be filed with the complaint as indicated in MCL 600.2912d(1). Scarsella, supra at 552, 607 N.W.2d 711. While § 2912d may be a clear statement that an affidavit is...