Legion-London v. Surgical Inst. of Mich. Ambulatory Surgery Ctr., LLC
| Decision Date | 06 February 2020 |
| Docket Number | No. 344838,344838 |
| Parties | Charlette LEGION-LONDON, also known as Charlette Legion, and Charlette London, Plaintiff-Appellant, v. SURGICAL INSTITUTE OF MICHIGAN AMBULATORY SURGERY CENTER, LLC, Michigan Brain & Spine Physicians Group, PLLC, Kevin T. Crawford, D.O., P.C., Kevin T. Crawford, D.O., and Aria Sabit, M.D., Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Bendure & Thomas, PLC, Grosse Pointe Park (by Mark R. Bendure ) and McKeen & Associates, PC, Detroit (by Brian J. McKeen and Andrew F. Kay ) for Charlette Legion-London.
Corbet, Shaw, Essad & Bonasso, PLLC (by Erika Jost, Daniel R. Corbet, and Kenneth A. Willis, Detroit) and Plunkett Cooney, Bloomfield Hills (by Robert G. Kamenec ) for Kevin T. Crawford, D.O., and Kevin T. Crawford, D.O., PC.
Before: Cameron, P.J., and Cavanagh and Shapiro, JJ.
The trial court granted summary disposition to defendants, Kevin T. Crawford, D.O., and Kevin T. Crawford, D.O., PC (collectively, defendants), on the ground that the author of the affidavit of merit (AOM) filed with the complaint was not an expert in Dr. Crawford's medical specialty. The trial court also denied plaintiff's motion to amend her AOM pursuant to MCR 2.112(L)(2)(b). The proposed amendment revised the affidavit to correctly identify Dr. Crawford's specialty as orthopedics and contained the notarized signature of an expert in orthopedics. The trial court denied the motion and dismissed the case, reasoning that because a different expert had signed the affidavit it could not be considered an amendment. Because the statute of limitations had already run, the case could not be refiled, and plaintiff appealed the dismissal. For the reasons stated in this opinion, we reverse the order granting summary disposition and remand for the trial court to accept the amendment for filing and for further proceedings consistent with this opinion.1
Plaintiff filed this medical malpractice suit against two surgeons: Dr. Aria Sabit, a neurosurgeon who was listed on the operative report as the "Surgeon," and Dr. Crawford, identified on the report as "Assistant." Plaintiff's complaint was filed with an AOM signed by a neurosurgeon, stating that the relevant standard of care was that of a neurosurgeon and that both doctors had violated it.
Dr. Sabit defaulted2 and the case proceeded against only Dr. Crawford and his practice. Dr. Crawford moved for summary disposition, asserting that the AOM was deficient because the standard of care applicable to him was that of an orthopedist, not a neurosurgeon. Plaintiff raised several arguments concerning the suitability of the AOM and subsequently moved to file an amended AOM that referred to the standard of care for an orthopedist and was signed by an orthopedist.
The trial court granted defendants' motion for summary disposition and later denied the motion to amend, concluding that the proffered revised affidavit did not constitute an amendment because the affiant was not the same doctor as the one who had signed the initial AOM.3
This case is controlled by the 2010 amendment of two court rules. First, MCR 2.112(L) was amended by the addition of Subrule (2). 485 Mich. cclxxv, cclxxv-cclxxvi (2010). Subrule (2)(b) provides a step-by-step procedure to be followed if a defendant believes that the AOM is defective. It provides that the defendant must challenge the AOM within 63 days of service and that a defective affidavit may be amended. It reads in pertinent part:
Second, additional language was added to MCR 2.118(D). 485 Mich. cclxxv, cclxxvi (2010). This amendment provided that a party could request to amend an AOM and that the amended affidavit would relate back to the original filing. The text of the rule, with the added language emphasized, reads:
An amendment that adds a claim or a defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading. In a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit. [ MCR 2.118(D) (emphasis added).]
MCR 2.118(D) does not place limits on the nature of the amendment. It provides for all types of amendments provided that the substance relates to the same conduct as the original pleading. Indeed, "[i]t does not matter whether the proposed amendment introduces new facts, a different cause of action, or a new theory, so long as the amendment springs from the same transactional setting as that pleaded originally." Kostadinovski v. Harrington , 321 Mich. App. 736, 744, 909 N.W.2d 907 (2017). See also Doyle v. Hutzel Hosp. , 241 Mich. App. 206, 212-213, 615 N.W.2d 759 (2000). In this case, it is undisputed that plaintiff's proposed amendment arose out of the same conduct as the conduct described in the original AOM. The substantive allegations pertain to the same event, and the allegations regarding the breach of the standard of care are materially the same. Therefore, plaintiff's proposed amendment is within the purview of MCR 2.118(D).
Defendants do not refer us to any language in MCR 2.118 indicating that an AOM signed by a different expert should not be considered an amendment. And it is well settled that under MCR 2.118(A)(2), "[l]eave [to amend] shall be freely given when justice so requires." Kostadinovski , 321 Mich. App. at 743, 909 N.W.2d 907 (). Motions to amend should only be denied for "the following particularized reasons: (1) undue delay, (2) bad faith or dilatory motive on the part of the movant, (3) repeated failure to cure deficiencies by amendments previously allowed, (4) undue prejudice to the opposing party by virtue of allowance of the amendment, or (5) futility of the amendment." Lane v. KinderCare Learning Ctrs., Inc. , 231 Mich. App. 689, 697, 588 N.W.2d 715 (1998). There may be instances where seeking to substitute an affiant in an AOM implicates one of these reasons for denial. But none is present here, or at least defendants have not identified one.
Moreover, an amendment to change an expert affiant is clearly contemplated by the text of MCR 2.112(L)(2)(b) as amended. Again, the rule states:
[A]ll challenges to an affidavit of merit or affidavit of meritorious defense, including challenges to the qualifications of the signer , must be made by motion, filed pursuant to MCR 2.119, within 63 days of service of the affidavit on the opposing party. An affidavit of merit or meritorious defense may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301. [ MCR 2.112(L)(2)(b) (emphasis added).]
Significantly, MCR 2.112(L)(2)(b) does not limit itself to errors in the body of the AOM, but applies also to the "qualifications of the signer." Because such a correction will, for all intents and purposes, require that a different health professional sign the affidavit, the text of the rule allows a plaintiff to amend an AOM by submitting one signed by a properly qualified physician. Holding otherwise would render nugatory the rule's reference to the "qualifications of the signer." See Casa Bella Landscaping, LLC v. Lee , 315 Mich. App. 506, 510, 890 N.W.2d 875 (2016) () (quotation marks and citation omitted; alteration in original). Moreover, requiring the defendant to promptly notify a plaintiff that the affiant is not properly qualified would serve no purpose if plaintiff was not also permitted to amend the affidavit so as to have a properly qualified expert.4
In its ruling from the bench, the trial court did not address either of the amended court rules. It instead relied on two cases decided pursuant to the rules as they existed prior to the 2010 amendments. In Ligons v. Crittenton Hosp. , 490 Mich. 61, 81-85, 803 N.W.2d 271 (2011), the Supreme Court held that an AOM may not be amended because it was not a "pleading" under the preamendment version of MCR 2.118. However, the Ligons Court made explicitly clear that it was ruling solely on the law as it existed prior to the 2010 court rule amendments and explicitly "decline[d] to apply the amended versions" of the rules. Id. at 87-89, 803 N.W.2d 271.5 And, as noted, the amendment of MCR 2.118(D) specifically refers to "an amendment of an affidavit of merit." Thus, whether one considers an AOM to be a pleading is irrelevant under the amended rule because it specifically provides for AOM amendments in addition to amendments to pleadings.6
The other case relied on by the trial court was Lucas v. Awaad , 299 Mich. App. 345, 830 N.W.2d 141 (2013), which like Ligons was decided based on the law prior to the 2010 court rule revisions. In that case, the trial court ruled that the affidavits of meritorious defense (AOMDs) did not address the standard of care and so were defective. Id. at 356, 830 N.W.2d 141. The defendant-physician then sought to file an AOMD signed by himself as an amendment. Id. at 356-357, 830 N.W.2d 141. This Court rejected that effort on two grounds. First, it held that even if the defendant's own AOMD...
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