Mouradian v. Goldberg
| Decision Date | 20 May 2003 |
| Docket Number | Docket No. 239954. |
| Citation | 256 Mich. App. 566,664 N.W.2d 805 |
| Parties | Jorha MOURADIAN and Diane Mouradian, Plaintiffs-Appellants, v. Darryl T. GOLDBERG, M.D., and Darryl T. Goldberg, M.D., P.C., Defendants-Appellees, and William Beaumont Hospital, Andrea Mastracci, C.R.N.A., and William Walker, M.D., Defendants. |
| Court | Court of Appeal of Michigan — District of US |
Ira B. Saperstein, Southfield, for the plaintiffs.
Wulfmeier & Ottenwess, PLC (by LeRoy H. Wulfmeier, III and John J. Moran), Detroit, for the defendants.
Before: FITZGERALD, P.J., and WILDER and COOPER, JJ.
In this medical-malpractice action, plaintiffs Jorha and Diane Mouradian appeal as of right the trial court's order granting summary disposition in favor of defendants Darryl T. Goldberg, M.D., and Darryl T. Goldberg, M.D., P.C., (hereafter defendants) pursuant to MCR 2.116(C)(7). We affirm.
Dr. Goldberg performed an extracapsular cataract extraction on Jorha Mouradian's right eye on May 13, 1998.1 Plaintiffs' complaint alleges that Dr. Goldberg committed medical malpractice during this procedure by implanting the wrong size lens, requiring a second surgery to be performed on June 10, 1998. Plaintiffs' complaint also contends that during the second surgery, defendants Goldberg, William Walker (an anesthesiologist), and Andrea Mastracci (a certified nurse anesthetist) administered the anesthesia inappropriately.2
On May 9, 2000, plaintiffs served defendants with their notice of intent to sue, as required by M.C.L. § 600.2912b. On November 13, 2000, plaintiffs filed their complaint, but did not file an affidavit of merit with the complaint, as required by M.C.L. § 600.2912d(1). Additionally, plaintiffs did not request or receive an extension of time from the court for filing the required affidavit, as permitted by M.C.L. § 600.2912d(2).3 On December 8, 2000, plaintiffs filed an affidavit of merit signed by Dr. Howard Siegel. Although plaintiffs assert that Dr. Siegel was unavailable to sign the affidavit of merit when plaintiffs filed their complaint and that they were left with no alternative but to file the affidavit at a later time, plaintiffs do not explain why no extension for filing the affidavit was sought at that time. Defendants were served with the summons and complaint and the affidavit of merit in January 2001.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). Defendants first argued that plaintiffs' claims against them regarding the May 1998 surgery were barred by the statute of limitations, noting that because plaintiffs did not file the affidavit with the complaint, in accordance with Scarsella v. Pollak (Scarsella II), 461 Mich. 547, 607 N.W.2d 711 (2000), affirming Scarsella v. Pollak (Scarsella I), 232 Mich.App. 61, 591 N.W.2d 257 (1998), the November 13, 2000, filing of the complaint did not toll the period of limitations, which expired on December 8, 2000. Defendants also contended that Dr. Goldberg did not administer the anesthetic to plaintiff Jorha Mouradian during the June 1998 surgery and that this point is undisputed, but defendants failed to present an affidavit or other evidentiary support for this assertion.
Plaintiffs failed to respond to defendants' contention that Dr. Goldberg did not administer the anesthetic. They conceded that the affidavit of merit was not filed at the time the complaint was filed. Plaintiffs contended, however, that M.C.L. § 600.2912d(1) did not require dismissal of the complaint despite their failure to file the affidavit with the complaint. Plaintiffs also argued that since defendants received the affidavit at the same time they were served with the complaint, defendants suffered no prejudice as a result of plaintiffs' failure to file the affidavit with the complaint, and that accordingly, pursuant to VandenBerg v. VandenBerg (VandenBerg I), 231 Mich.App. 497, 502-503, 586 N.W.2d 570 (1998), dismissal was not required. Plaintiffs further argued that Scarsella II was distinguishable because plaintiffs served defendants with the affidavit of merit and the complaint simultaneously, whereas in Scarsella II the defendants were not served with the affidavit of merit until sometime after they were served with the summons and complaint. Plaintiffs requested in the alternative that the trial court grant them, pursuant to M.C.L. § 600.2912d(2), a retroactive twenty-eight-day extension to file their affidavit of merit, such that the affidavit of merit would relate back to the filing of the complaint.
The trial court granted summary disposition in favor of defendants based on MCR 2.116(C)(7), finding that Scarsella II required dismissal of the action. Specifically, the trial court held that the filing of plaintiffs' complaint alone failed to toll the period of limitations and that plaintiffs' claims were time-barred because the affidavit of merit was not filed before the period of limitations expired. The trial court rejected plaintiffs' request for a retroactive twenty-eight-day extension to file the affidavit of merit, finding pursuant to Holmes v. Michigan Capital Medical Center, 242 Mich.App. 703, 708, 620 N.W.2d 319 (2000), that permitting plaintiffs'later-filed affidavit of merit to relate back to the date of the complaint would effectively negate the statutory affidavit requirement. Subsequently, plaintiffs moved for reconsideration of the trial court's decision, which was denied. This appeal followed.
This Court reviews de novo a trial court's decision to grant or deny summary disposition. Veenstra v. Washtenaw Country Club, 466 Mich. 155, 159, 645 N.W.2d 643 (2002). Summary disposition is appropriate under MCR 2.116(C)(7) when a claim is time-barred. McKiney v. Clayman, 237 Mich.App. 198, 201, 602 N.W.2d 612 (1999). In reviewing a request for summary disposition pursuant to MCR 2.116(C)(7), we consider all the documentary evidence provided by the parties and accept as true all of plaintiffs' well-pleaded allegations, unless contradicted by documentary evidence. Id. at 202, 602 N.W.2d 612; Novak v. Nationwide Mut. Ins. Co., 235 Mich.App. 675, 681-682, 599 N.W.2d 546 (1999); Holmes, supra at 703, 620 N.W.2d 319.
We agree that the trial court properly granted summary disposition in this case, although we disagree with part of its analysis. Plaintiffs alleged that Dr. Goldberg committed malpractice on both May 13, 1998, and June 10, 1998. Under the tolling provisions of M.C.L. § 600.5856(d), the period of limitations for the May 13, 1998, surgery expired on November 13, 2000. The period of limitations for the second surgery expired on December 11, 2000. As the trial court correctly found, plaintiffs' complaint, filed without the affidavit of merit required by M.C.L. § 600.2912d, did not toll the limitations period because "`in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit.'" Scarsella II, supra at 549, 607 N.W.2d 711, quoting Scarsella I, supra at 64, 591 N.W.2d 257. Because the limitations period concerning the first surgery expired before the affidavit of merit was filed, plaintiffs' claims relating to the May 13, 1998, surgery are time-barred. Holmes, supra at 709, 620 N.W.2d 319.
Plaintiffs claim that VandenBerg I rather than Scarsella II controls the disposition of this case. We disagree. First, we note that in VandenBerg v. VandenBerg (VandenBerg II), 253 Mich.App. 658, 662, 660 N.W.2d 341 (2002), this Court relied on our holding in Scarsella I that "`the mere tendering of a complaint without the required affidavit of merit is insufficient to commence [a medical-malpractice] lawsuit,'" and found that although the complaint may have already been filed, a medical-malpractice action is not timely commenced where the filing of an affidavit of merit occurs beyond the period set by the applicable statute of limitations. VandenBerg II, supra at 661-662, 660 N.W.2d 341, quoting Scarsella I, supra at 64, 591 N.W.2d 257. Thus, in the instant case the fact that defendants were served simultaneously with the affidavit of merit and the summons and complaint is irrelevant because the suit was not commenced before the expiration of the period of limitations. Accordingly, we affirm the trial court's decision with regard to the first alleged act of malpractice.
Plaintiffs did, however, file the affidavit of merit before the expiration of the period of limitations for the second alleged act of malpractice.4 The trial court erroneously held that plaintiffs' claims were time-barred because the period of limitations expired on December 8, 2000. In fact, the period of limitations for claims related to the second surgery expired on December 11, 2000. Thus, the filing of plaintiffs' affidavit on December 8, 2000, appears, on its face, to have "completed" the filing of the complaint before the period of limitations expired. Scarsella II, supra at 550, 607 N.W.2d 711.
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