Scarsella v. Pollak
Decision Date | 28 March 2000 |
Docket Number | Docket No. 114630. |
Citation | 607 N.W.2d 711,461 Mich. 547 |
Parties | Richard SCARSELLA, Plaintiff-Appellant, v. Norman L. POLLAK, M.D., Defendant-Appellee. |
Court | Michigan Supreme Court |
Dib & Fagan, P.C. (by Albert J. Dib), Detroit, and Bendure & Thomas (by Victor S. Valenti), Detroit, of counsel, for plaintiff-appellant.
Schwartz & Jalkanen (by Karl E. Hannum), Southfield, for defendant-appellee.
In this case, the Court of Appeals has crafted a clear, concise opinion that correctly resolves an important issue. 232 Mich.App. 61, 591 N.W.2d 257 (1998). We adopt this opinion in its entirety, and reprint it below. At its conclusion, we will add two additional points of clarification.
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In this case, plaintiff filed his medical malpractice complaint against defendant and others on September 22, 1995, approximately two to three weeks before plaintiff's claim would be barred by the applicable two-year limitation period. MCL 600.5805(4); MSA 27A.5805(4). Plaintiff did not file an affidavit of merit with the complaint, however, and he did not move for a twenty-eight-day extension in which to file an affidavit.
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As indicated, we wish to add two additional points. One concerns Gregory v. Heritage Hosp., decided sub nom. Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 47-48, 594 N.W.2d 455 (1999). In that case, we wrote:
As to the appropriate sanction for failure to file an affidavit of merit, we find in the present case that dismissal without prejudice is also appropriate. In VandenBerg v. VandenBerg, 231 Mich.App. 497, 502, 586 N.W.2d 570 (1998), the Court of Appeals found that the purpose of the statute was to prevent frivolous medical malpractice claims. In that case, plaintiff did not file an affidavit of merit at the time of filing the complaint; however, the defendants did receive an affidavit of merit at the same time they were served with the summons and the complaint. The Court of Appeals found that defendants did not suffer any prejudice because "they had access to the affidavit of merit from the moment they received the complaint." Id. at 503, 586 N.W.2d 570. In the present case, plaintiff's complaint was unaccompanied by an affidavit of merit at the time of filing and service upon the defendant, and at no time has plaintiff ever supplemented her complaint with an affidavit of merit. Under these circumstances, we hold that dismissal without prejudice would be the appropriate sanction for plaintiff's failure to comply with § 2912d.
That is all true. However, the difference between Dorris / Gregory and the present case is that today's plaintiff has a statute of limitations problem.2 As we explained in Dorris, a plaintiff who files a medical-malpractice complaint without the required affidavit is subject to a dismissal without prejudice, and can refile properly at a later date. However, such a plaintiff still must comply with the applicable period of limitation.
That brings us to our second point of clarification. MCL 600.5856(a); MSA 27A.5856(a) provides that a period of limitation is tolled "[a]t the time the complaint is filed and a copy of the summons and complaint are served on the defendant."3 In the present case, the plaintiff did file and serve a complaint within the limitation period. The issue thus arises whether that filing and service tolled the limitation period, so that it still had not expired when the affidavit was filed the following spring.4
As explained by the Court of Appeals in the opinion we are adopting today, such an interpretation would undo the Legislature's clear statement that an affidavit of merit "shall" be filed with the complaint. MCL 600.2912d(1); MSA 27A.2912(4)(1). And the Court of Appeals also correctly noted Solowy v. Oakwood Hosp. Corp., supra at 228-229, 561 N.W.2d 843, where we counseled persons who cannot provide the required affidavit to obtain an extension under M.C.L. § 600.2912d(2); MSA 27A.2912(4)(2).5 Today, we address only the situation in which a medical malpractice plaintiff wholly omits to file the affidavit required by M.C.L. § 600.2912d(1); MSA 27A.2912(4)(1).6 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.7
For the reasons stated by the Court of Appeals, as clarified in this opinion,8 we affirm the judgments of the circuit court and the Court of Appeals. MCR 7.302(F)(1).
MICHAEL F. CAVANAGH and MARILYN J. KELLY, JJ.
We would grant or deny leave to appeal, but would not dispose of this case by opinion per curiam.
1. We recognize that in VandenBerg v. VandenBerg, 231 Mich.App. 497, 586 N.W.2d 570 (1998), [the Court of Appeals] held that dismissal is not an appropriate remedy when a medical malpractice plaintiff fails to file an affidavit of...
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