Vanslembrouck v. Halperin

• Decision Date: 15 January 2008
• Docket Number: Docket No. 273551.
• Citation: 747 N.W.2d 311,277 Mich.App. 558
• Parties: Markell VANSLEMBROUCK, a Minor, by and Through her Mother and Next Friend Kimberly A. VANSLEMBROUCK, and Kimberly A. Vanslembrouck, Individually, Plaintiffs-Appellants, v. Andrew Jay HALPERIN, M.D., Michigan Institute of Gynecology & Obstetrics, P.C., and William Beaumont Hospital, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

747 N.W.2d 311

277 Mich.App. 558

Markell VANSLEMBROUCK, a Minor, by and Through her Mother and Next Friend Kimberly A. VANSLEMBROUCK, and Kimberly A. Vanslembrouck, Individually, Plaintiffs-Appellants, v. Andrew Jay HALPERIN, M.D., Michigan Institute of Gynecology & Obstetrics, P.C., and William Beaumont Hospital, Defendants-Appellees.

Docket No. 273551.

Court of Appeals of Michigan.

Submitted November 6, 2007, at Detroit.

Decided January 15, 2008, at 9:15 a.m.

Fieger, Fieger, Kenney, Johnson & Giroux, P.C. (by William J. McHenry and Heather Jefferson), and Beam & Raymond Associates (by Jack Beam and Douglas J. Raymond), Southfield, Lafayette, CO for the plaintiffs.

Plunkett Cooney (by Robert G. Kamenec and Kristen M. Netschke) Bloomfield Hills for the defendants.

Before: SERVITTO, P.J., and SAWYER and MURRAY, JJ.

PER CURIAM.

Plaintiffs appeal as of right the trial court's order granting summary disposition in defendants' favor. Because, contrary to the determinations of the trial court, the affidavits of merit attached to plaintiffs' compliant comply with statutory requirements and plaintiffs' complaint was filed within the statutory limitations period, we reverse.

This medical malpractice action arose as a result of injuries sustained by plaintiff Markell Vanslembrouck during her birth and as a result of the birth process. According to the complaint, Markell was diagnosed with hypoxic-ischemic encephalopathy and cerebral palsy shortly after her birth. Plaintiffs contend that these medical conditions occurred as a result of defendants' negligence. Defendants denied the allegations and thereafter moved for summary disposition, arguing that the affidavits of merit attached to plaintiffs' complaint were legally insufficient and that plaintiffs' complaint was untimely. The trial court agreed and granted summary disposition in defendants' favor.

This Court reviews a trial court's grant or denial of summary disposition under MCR 2.116(C)(7) de novo. Tarlea v. Crabtree, 263 Mich.App. 80, 87, 687 N.W.2d 333 (2004). Summary disposition is appropriate under MCR 2.116(C)(7) if "[t]he claim is barred because of ... statute of limitations...." In reviewing a motion under MCR 2.116(C)(7), this Court "consider[s] all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them." Fane v. Detroit Library Comm., 465 Mich. 68, 74, 631 N.W.2d 678 (2001). "Whether a claim is barred by a statute of limitations is a question of law that this Court reviews de novo." Scherer v. Hellstrom, 270 Mich. App. 458, 461, 716 N.W.2d 307 (2006). This Court also reviews de novo questions of statutory interpretation and questions of law relating to the sufficiency of an affidavit of merit. See McElhaney v. Harper-Hutzel Hosp., 269 Mich.App. 488, 490 n. 1, 711 N.W.2d 795 (2006).

On appeal, plaintiffs first contend that the out-of-state affidavits of merit submitted with their complaint complied with statutory requirements and thus could not serve as a basis for dismissing the complaint. We agree.

To commence a medical malpractice action, a plaintiff must file a complaint and an affidavit of merit. Young v. Sellers, 254 Mich.App. 447, 451, 657 N.W.2d 555 (2002). When a medical malpractice complaint is filed without an affidavit of merit, the complaint is ineffective and fails to toll the limitations period. Scarsella v. Pollak, 461 Mich. 547, 553, 607 N.W.2d 711 (2000).

MCL 600.2912d(1) provides:

[T]he plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, 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]. The 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....

An affidavit of merit must be "confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation." Holmes v. Michigan Capital Med. Ctr., 242 Mich.App. 703, 711, 620 N.W.2d 319 (2000).

Pursuant to MCL 600.2102, the signature of an out-of-state notary public must be authenticated. The statute provides:

In cases where by law the affidavit of any person residing in another state of the United States, or in any foreign country, is required, or may be received in judicial proceedings in this state, to entitle the same to be read, it must be authenticated as follows:

* * *

(4) If such affidavit be taken in any other of the United States or in any territory thereof, it may be taken before a commissioner duly appointed and commissioned by the governor of this state to take affidavits therein, or before any notary public or justice of the peace authorized by the laws of such state to administer oaths therein. The signature of such notary public or justice of the peace, and the fact that at the time of the taking of such affidavit the person before whom the same was taken was such notary public or justice of the peace, shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court.

In the instant matter, plaintiffs attached affidavits of merit executed by Jeffrey Soffer, M.D., Patricia Romo, R.N., and Ronald Gabriel,¹ M.D., to the complaint. Soffer, a board-certified obstetrician/gynecologist, executed his affidavit in the state of New Jersey. It bore the signature and seal of Francine Arthur, a New Jersey notary public. Arthur's signature was certified by Bradley Abela, the treasurer of New Jersey. Romo, a registered nurse, executed her affidavit in the state of Arizona. It bore the sign and seal of Dawn L. Carney, an Arizona notary public. Carney's signature was certified by Janice K. Brewer, Arizona's Secretary of State.

Defendants successfully argued before the trial court that the affidavits of merit executed by Soffer and Romo failed to comply with MCL 600.2102 because the affidavits, while notarized, were not accompanied by a certificate signed by the clerk of any court of record in the county were the affidavit was executed. Therefore, defendants claimed, because plaintiffs failed to attach a legally sufficient affidavit of merit to the complaint, the complaint was null and void. Our Supreme Court's recent decision in Apsey v. Mem. Hosp., 477 Mich. 120, 730 N.W.2d 695 (2007) (Apsey II), however, dictates otherwise.

In Apsey, the plaintiffs filed a medical malpractice action and attached to their complaint an affidavit of merit prepared in Pennsylvania, and containing the signature of a notary public from that state. A normal notarial seal appeared on the affidavit, but no other certification accompanied the seal. The trial court granted the defendants' motion for summary disposition, ruling that the plaintiffs' failure to provide further certification as required by MCL 600.2102(4) rendered the out-of-state notarization insufficient. It concluded that the affidavit was a nullity, that without the affidavit the plaintiffs' complaint was not complete, and that their cause of action failed for never having been properly commenced.

On appeal, a panel of this Court was required to decide whether, as argued by the plaintiffs, MCL 565.262, "the general statute concerning notarial acts," governed affidavits of merit in medical malpractice cases or whether MCL 600.2102, with its "more demanding requirements" governed. Apsey v. Mem. Hosp. (On Reconsideration), 266 Mich.App. 666, 669, 670, 702 N.W.2d 870 (2005)(Apsey I). This Court held that the more specific requirements of MCL 600.2102 controlled over the general requirements of MCL 565.262 of the Uniform Recognition of Acknowledgements Act (URAA), MCL 565.261 et seq., and that the affidavits attached to the plaintiffs' complaint were therefore defective. The Apsey I panel gave the decision prospective effect.

The plaintiffs appealed in our Supreme Court, which was called upon to review the interplay between the URAA and MCL 600.2102(4). Specifically at issue was whether MCL 565.262 conflicted with MCL 600.2102(4), because they require different certifications for out-of-state affidavits. The Court noted that MCL 565.262(a) defines "notarial acts" under the URAA as "`acts that the laws of this state authorize notaries public of this state to perform, including the administering of oaths and affirmations, taking proof of execution and acknowledgments of instruments, and attesting documents. Notarial acts may be performed outside this state for use in this state with the same effect as if performed by a notary public of this state by the following persons authorized pursuant to the laws and regulations of other governments in addition to any other person authorized by the laws of this state....'" Apsey II, supra, 477 Mich. at 128, 730 N.W.2d 695 (emphasis omitted). The Court also noted:

"In MCL 565.268, the Legislature indicated how the URAA was meant to interact with MCL 600.2102. MCL 565.268 provides:

"A notarial act performed prior to the effective date of this act is not affected by this act. This act provides an additional method of proving notarial acts. Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state." [Id. at 129, 730 N.W.2d 695 (emphasis omitted).]

According to our Supreme Court, "[b]ecause the two methods are alternative and coequal, the URAA does not diminish or invalidate `the recognition accorded to notarial acts by other laws of this state.' MCL 565.268. Simply, MCL 600.2102(4) is not invalidated by the URAA. It remains an additional method of attestation...