Potter v. McLeary

Decision Date06 February 2007
Docket NumberDocket No. 262529.,Docket No. 263538.
Citation732 N.W.2d 600,274 Mich. App. 222
PartiesBrian POTTER, Plaintiff-Appellee, v. Richard C. McLEARY, M.D., Gary Augustyn, M.D., Robert Domeier, D.O., Emergency Physicians Medical Group, P.C, and St. Joseph Mercy Hospital Ann Arbor, d/b/a Trinity Health-Michigan, Defendants, and Kristyn H. Murry, M.D. and Huron Valley Radiology, P.C., Defendants-Appellants. Brian Potter, Plaintiff-Appellee, v. Richard C. McLeary, M.D., Kristyn H. Murry, M.D., Gary Augustyn, M.D. Huron Valley Radiology, P.C., and St. Joseph Mercy Hospital Ann Arbor, d/b/a Trinity Health-Michigan, Defendants, and Robert Domeier, D.O. and Emergency Physicians Medical Group, P.C., Defendants-Appellants.
CourtCourt of Appeal of Michigan — District of US

Mark Granzotto, P.C. (by Mark Granzotto), and Erlich, Rosen & Bartnick, P.C. (by J. Martin Bartnick), Southfield, for Brian Potter.

Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Susan J. Zbikowski), Southfield, for Robert Domeier, D.O.; and Emergency Physicians Medical Group.

Foley, Baron & Metzger, PLLC (by Judith A. Sherman and Carole S. Empey), Ann Arbor, for St. Joseph Mercy Hospital Ann Arbor.

Chapman and Associates, P.C. (by Ronald W. Chapman, Brian J. Richtarcik, and David B. Mammel), Bloomfield Hills, for Kristyn Murry, M.D.; and Huron Valley Radiology, P.C.

Before: WILDER, P.J., and ZAHRA and DAVIS, JJ.

WILDER, P.J.

In these consolidated appeals, defendants appeal by leave granted the trial court's orders denying their motions for summary disposition pursuant to MCR 2.116(C)(7). The dispositive issue on appeal in this medical malpractice action is whether plaintiff's affidavits of merit complied with the requirements of MCL 600.2912d. Because they did not, we reverse.

The alleged malpractice took place on June 7, 2001. The statute of limitations in medical malpractice cases is two years from the date the claim accrued. MCL 600.5805(6). Presuming the notice of intent was sufficient,1 the statute of limitations would have been tolled for 182 days from the date of the notice. MCL 600.2912b(1). A notice of intent was sent to defendants Huron Valley Radiology and Kristyn H. Murry, M.D., on May 30, 2003, leaving eight days before the period of limitations expired. A notice of intent was sent to defendants St. Joseph Mercy Hospital Ann Arbor; Robert Domeier, D.O.; and Emergency Physicians Medical Group, P.C. on May 13, 2003, leaving 25 days before the period of limitations expired. The notices tolled the running of the limitations periods, which recommenced on November 30, 2003, and on November 13, 2003, respectively. The limitations period expired on December 8, 2003, for all defendants. Plaintiff's complaint was filed on November 4, 2003.

Plaintiff submitted two affidavits of merit with his complaint. Both were signed by appropriately certified medical professionals. They included specific statements of the standard of care, indications of how that standard was breached, and what actions should have been taken to comply with the standard of care. However, both affidavits are devoid of any statement on proximate cause. See MCL 600.2912d(1)(d). Therefore, "[w]e hold that plaintiff's affidavit was defective and did not constitute an effective affidavit for the purpose of MCL 600.2912d(1) and, therefore, plaintiff filed a complaint without an affidavit of merit sufficient to commence a medical malpractice action." Geralds v. Munson Healthcare, 259 Mich.App. 225, 240, 673 N.W.2d 792 (2003), citing Scarsella v. Pollak, 461 Mich. 547, 553, 607 N.W.2d 711 (2000) (Scarsella II), and Mouradian v. Goldberg, 256 Mich.App. 566, 574, 664 N.W.2d 805 (2003). There is nothing in the record to suggest that a conforming affidavit was filed before December 8, 2003. Therefore, summary disposition is appropriate under MCR 2.116(C)(7) because the action was not properly commenced, and the period of limitations has expired.

We reject plaintiff's contention that, under MCL 600.2301, retroactive amendment of the nonconforming affidavit of merit should be permitted so that plaintiff's cause of action would no longer be barred by the statute of limitations. MCL 600.2301 provides:

The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.

In Mouradian, this Court, quoting from Scarsella II, concluded that the trial court did not abuse its discretion when it denied plaintiff's request to permit the filing of an amended affidavit that would relate back to the date the complaint was filed:

"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 MCL 600.2912d(1) . . . that the plaintiff `shall file with the complaint an affidavit of merit,' as well as the legislative remedy of MCL 600.2912d(2) . . . allowing a twenty-eight-day extension in instances where an affidavit cannot accompany the complaint." [Mouradian, supra at 575, 664 N.W.2d 805, quoting Scarsella II, supra at 550, 607 N.W.2d 711, quoting Scarsella v. Pollak, 232 Mich.App. 61, 65, 591 N.W.2d 257 (1998) (Scarsella I).]

We adopt this reasoning here, and find unpersuasive our dissenting colleague's view that the instant case is distinguishable from Scarsella II and Mouradian. MCL 600.2912d(1) expressly requires that a plaintiff "shall" file an affidavit of merit with the complaint at the commencement of the lawsuit. The purpose of this requirement is "to ensure trustworthy medical expert testimony and to discourage frivolous lawsuits. Nippa v. Botsford Gen. Hosp. (On Remand), 257 Mich.App. 387, 394, 668 N.W.2d 628 (2003). To this end, a complaint filed without the requisite conforming affidavit is insufficient to sustain a lawsuit, and therefore, the period of limitations is not tolled under these circumstances. Scarsella II, supra at 553, 607 N.W.2d 711. Permitting the plaintiff to amend his nonconforming affidavits by providing the omitted and required statements on proximate cause, and then permitting the amended affidavits to relate back to the initial filing of the complaint, completely subverts the affidavit requirement established by MCL 600.2912d(1), and renders superfluous the specific legislative remedy established in MCL 600.2912d(2) for circumstances where a conforming affidavit of merit cannot accompany the complaint. Moreover, MCL 600.2301 is a statute that applies generally to pending actions or proceedings, whereas MCL 600.2912d(1) and (2) are statutes that specifically apply to medical malpractice actions. When two statutes conflict, the one that is more specific to the subject matter prevails over the more general statute." Craig v. Detroit Pub. Schools Chief Executive Officer, 265 Mich.App. 572, 575, 697 N.W.2d 529 (2005), citing Livonia Hotel, LLC v. City of Livonia, 259 Mich.App. 116, 131, 673 N.W.2d 763 (2003).

Because this issue is dispositive, we need not reach the other issues raised on appeal.

Reversed.

ZAHRA, J., concurred.

DAVIS, J., (dissenting).

I agree with the majority that the affidavits of merit filed in this case were defective. As counsel essentially conceded at oral argument, they did not contain any statement whatsoever on proximate cause because they did not state how the physicians' alleged failures related to plaintiff's alleged injuries. Because no conforming affidavit was filed before December 8, 2003, when the limitations period expired, summary disposition under MCR 2.116(C)(7) was ostensibly appropriate.

However, I respectfully disagree with the majority's dismissal of the possibility of retroactive amendment of the nonconforming affidavits under MCL 600.2301, which states as follows:

The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.

This statute, or its substantially identical predecessor, has been part of Michigan statutory law for almost a century.1 However, I can find no published caselaw addressing it in this context. The possibility of amendment was discussed in Scarsella v. Pollak, 461 Mich. 547, 607 N.W.2d 711 (2000). However, our Supreme Court in Scarsella did not address the clear policy implications of MCL 600.2301, and the holding was explicitly limited to situations where no affidavit was filed whatsoever. Scarsella, supra at 550-553, 607 N.W.2d 711. Obviously, there is no logical way to amend a nonexistent process, pleading, or proceeding, so MCL 600.2301 would not have applied in any event. The situation before this Court today is different.

Since Scarsella, this Court has concluded that a "grossly nonconforming" affidavit does not...

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2 cases
  • Potter v. McLeary
    • United States
    • Michigan Supreme Court
    • July 31, 2009
    ...with prejudice because the attached affidavits of merit did not conform to the requirements of MCL 600.2912d. Potter v. McLeary, 274 Mich.App. 222, 732 N.W.2d 600 (2007). In lieu of granting leave to appeal, our Supreme Court the portion of this Court's judgment "dismissing the complaint wi......
  • Potter v. Murry
    • United States
    • Court of Appeal of Michigan — District of US
    • March 20, 2008
    ...with prejudice because the attached affidavits of merit did not conform to the requirements of MCL 600.2912d. Potter v. McLeary, 274 Mich.App. 222, 732 N.W.2d 600 (2007). In lieu of granting leave to appeal, our Supreme Court reversed the portion of this Court's judgment "dismissing the com......

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