If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
GARY JOSEPH RUSHLOW, UNPUBLISHED
April 29, 2021
Plaintiff-Appellee,
v No. 351572
Wayne County Circuit Court
JOHN E BODELL, LC No. 19-008733-NH
Defendant-Appellant,
and
BEAUMONT MEDICAL CENTER,
Defendant.
Before: TUKEL, P.J., and SERVITTO and RICK, JJ.
PER CURIAM.
In this medical malpractice action, defendant, John E. Bodell, appeals by leave granted the
trial court order denying his motion for summary disposition under MCR 2.116(C)(7) (statute of
limitations) and (C)(8) (failure to state a claim on which relief may be granted) and motion to
dismiss the claims because of a defective affidavit of merit (AOM).1 Defendant argues that the
trial court erred because plaintiff’s malpractice claims were barred by the two-year statute of
limitations under MCL 600.5838(a) and MCL 600.5805(8), plaintiff failed to file the required
AOM with the complaint, and that the AOM that was eventually filed was defective because the
1
Rushlow v Bodell, unpublished order of the Court of Appeals, entered March 17, 2020 (Docket
No. 351572).
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expert witness was not qualified to provide expert testimony in this suit.2 For the reasons stated
in this opinion, we affirm in part, reverse in part, and remand to the trial court with instructions
that it enter an order granting summary disposition under MCR 2.116(C)(7) in part, and to dismiss
the surviving claims without prejudice as a result of plaintiff’s nonconforming affidavit of merit.
I. BACKGROUND
This case arises from plaintiff’s carpal tunnel surgery performed by defendant, Dr. Bodell,
on December 9, 2016, and subsequent follow-up appointments that took place on January 3,
January 16, January 30, and February 14, 2017. Plaintiff alleged that defendant damaged his nerve
during the surgery and failed to order testing to identify the cause of numbness and pain he
experienced at the follow-up appointments. Plaintiff discovered his nerve injury in April 2017,
after a different doctor ordered diagnostic tests.
On November 9, 2018, plaintiff sent defendant a presuit notice of intent (NOI). Plaintiff
filed an initial complaint on June 12, 2019, which he subsequently voluntarily dismissed. A
second complaint was filed on June 24, 2019, but an AOM was not attached to the complaint.
Plaintiff filed an amended complaint on July 12, 2019, alleging that defendant negligently
performed carpal tunnel surgery and subsequently failed to diagnose his nerve injury. An AOM
was filed with the July complaint, in which Dr. Robert Coats asserted that defendant had breached
the standard of care by failing to diagnose plaintiff’s nerve injury following surgery.
Defendant filed a motion for summary disposition under MCR 2.116(C)(7) and (C)(8).
Defendant asserted that summary disposition under MCR 2.116(C)(7) was appropriate for the
claims accruing on December 9, 2016 and January 3, 2017, and some of the post-operative claims
because they were barred by the statute of limitations. Defendant also argued that the trial court
should grant summary disposition in his favor for the remaining claims because plaintiff failed to
file the AOM with the June 24, 2019 complaint.
Defendant also asserted that the claims should be dismissed because plaintiff’s AOM was
defective. Defendant asserted that the AOM was defective because it did not meet the statutory
requirements of MCL 600.2912d. Defendant argued that Dr. Coats was not qualified to offer
standard-of-care testimony and that plaintiff’s counsel did not have a “reasonable belief” that Dr.
Coats was qualified to offer such testimony against defendant. In order to be qualified to offer
standard-of-care testimony against defendant under MCL 600.2169(1), defendant asserted, Dr.
Coats was required to have been specialized and board-certified in general surgery. However, Dr.
Coats was board-certified in and practiced orthopedic and hand surgery.
The trial court denied both of defendant’s motions. It found that, because Dr. Coats was a
board-certified hand surgeon and orthopedic surgeon, he was qualified to testify and sign the
2
Plaintiff and Defendant Beaumont Medical Center stipulated to the dismissal of Beaumont from
the suit in August 2019. Accordingly, “defendant” refers only to defendant Dr. Bodell in this
opinion.
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AOM. The trial court found that plaintiff “submitted the [NOI] within less than 2 years from when
the cause of action accrued [sic] when [plaintiff] noticed that something was wrong in April of
‘17” and denied defendant’s motion. The court did not address plaintiff’s alleged failure to file an
AOM with the June 24, 2019 complaint. This appeal followed.
II. STATUTE OF LIMITATIONS
Defendant argues that the trial court erred by denying his summary disposition motion
under MCR 2.116(C)(7).
“This Court reviews de novo whether a trial court properly granted a motion for summary
disposition.” Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362,
369; 775 NW2d 618 (2009). “Summary disposition under MCR 2.116(C)(7) is appropriate when
the undisputed facts establish that the plaintiff’s claim is barred under the applicable statute of
limitations.” Kincaid v Cardwell, 300 Mich App 513, 522; 834 NW2d 122 (2013). “Generally,
the burden is on the defendant who relies on a statute of limitations defense to prove facts that
bring the case within the statute.” Id. “If there is no factual dispute, whether a plaintiff’s claim is
barred under the applicable statute of limitations is a matter of law for the court to determine.” Id.
at 523. “Statutory interpretation is an issue of law that is reviewed de novo.” Bates v Gilbert, 479
Mich 451, 455; 736 NW2d 566 (2007).
A medical malpractice claim “accrues at the time of the act or omission that is the basis for
the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has
knowledge of the claim.” MCL 600.5838a(1). Each separate act or omission is its own cause of
action with its own accrual date. Kincaid, 300 Mich App at 525. The statute of limitations period
applicable in a medical malpractice suit is two years from the accrual date. Id. at 523. See also
MCL 600.5805(8). However, and subject to other limitations not relevant to this matter, a medical
malpractice action may be commenced either within two years after the act or omission that is the
basis for the claim, or within six months after the plaintiff discovered or should have discovered
“the existence of the claim, whichever is later.” MCL 600.5838a(2). Plaintiff asserted that he
discovered his nerve injury in April 2017, after a different doctor ordered diagnostic tests. It is
undisputed that the 2 year after-the-act period operates as the applicable limitations period in this
case. When plaintiff discovered his injury is irrelevant to our analysis.
MCL 600.2912b(1) provides:
Except as otherwise provided in this section, a person shall not commence
an action alleging medical malpractice against a health professional or health
facility unless the person has given the health professional or health facility written
notice under this section not less than 182 days before the action is commenced.
Although the limitations period for a medical malpractice claim is generally two years from the
act or six months from discovery, as noted above, this provision tolls the statute of limitations for
182 days, provided that the plaintiff provides the notice required by MCL 600.2912b. Then, once
notice is provided, the plaintiff would be prohibited from filing suit by MCL 600.2912b until after
the 182 day tolling period expires. See MCL 600.5856(c); Waltz v Wyse, 469 Mich 642, 649; 677
NW2d 813 (2004). Plaintiff sent defendant a NOI on November 9, 2018, which effectively tolled
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the statute of limitations for 182 days under MCL 600.5856(c). Accordingly, the limitations period
would expire for each claim as follows:
Event Accrual Date Two years Plus 182 days
Surgery 12/9/2016 12/9/2018 6/9/2019 (Sunday – filing due next
business day)
Post-Op #1 1/3/2017 1/3/2019 7/4/2019 (Holiday – filing due next
business day)
Post-Op #2 1/16/2017 1/16/2019 7/17/2019
Post-Op #3 1/30/2017 1/30/2019 7/31/2019
Post-Op #4 2/14/2017 2/14/2019 8/5/2019
Plaintiff filed an initial complaint on June 12, 2019, which he voluntarily dismissed. A
second complaint was filed on June 24, 2019, but an AOM was not attached. Then, on July 12,
2019, plaintiff filed an amended complaint with an AOM signed by Dr. Coats.
The mere filing of a complaint without an affidavit of merit does not commence a medical
malpractice lawsuit, nor does it toll the statute of limitations. Scarsella v Pollak, 461 Mich 547,
549, 550; 607 NW2d 711 (2000). However, “[u]pon motion of a party for good cause shown, the
court in which the complaint is filed may grant the plaintiff or, if the plaintiff is represented by an
attorney, the plaintiff’s attorney an additional 28 days in which to file the affidavit required under
subsection (1).” MCL 600.2912d(2). Notably, plaintiff did not file such a motion with his June 24,
2019 complaint. Although plaintiff’s counsel asserts that he filed the AOM with the June 24, 2019
complaint, the record indicates that an AOM was not filed with that complaint. Accordingly, the
suit was commenced on July 12, 2019, when the AOM was filed with the complaint. Therefore,
the trial court erred when it denied defendant summary disposition under MCR 2.117(C)(7) as it
related to the December 9, 2016 and January 3, 2017 claims because the statute of limitations had
expired by the time plaintiff commenced the suit. The trial court should have dismissed those
claims with prejudice. See Ligons v Crittenton Hosp, 490 Mich 61, 73; 803 NW2d 271 (2011)
(“When the untolled period of limitations expires before the plaintiff files a complaint
accompanied by an AOM, the case must be dismissed with prejudice on statute-of-limitations
grounds.”).
That leaves the three remaining post-operative claims: January 16, 2017; January 30, 2017;
and February 14, 2017. Because plaintiff commenced the suit on July 12, 2019, before the statute
of limitations had expired, the trial court did not err by denying defendant’s summary disposition
under MCR 2.116(C)(7) as to the remaining claims.
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III. AFFIDAVIT OF MERIT
Next, defendant argues that the trial court erred by denying his motion to dismiss plaintiff’s
AOM because it was nonconforming. We agree.
Determining the statutory requirements for an affidavit of merit is a question of statutory
interpretation that is reviewed de novo Jones v Botsford Continuing Care Corp, 310 Mich App
192, 199; 871 NW2d 15 (2015). “[A] trial court’s rulings concerning the qualifications of
proposed expert witnesses to testify” is reviewed for an abuse of discretion. Woodard v Custer,
476 Mich 545, 557; 719 NW2d 842 (2006). “An abuse of discretion occurs when the decision
results in an outcome falling outside the principled range of outcomes.” Id.
As a preliminary matter, we note that defendant brought his motion to dismiss under
MCR 2.116(C)(8). However, he relied on documentary evidence outside of the pleadings to
support his motion. MCR 2.116(G)(5) provides that the trial court may not consider documentary
evidence when considering summary disposition motions brought pursuant to MCR 2.116(C)(8).
“[W]here a party brings a summary disposition motion under the wrong subrule, the trial court
may proceed under the appropriate subrule as long as neither party is misled.” Blair v Checker
Cab Co, 219 Mich App 667, 670-671; 558 NW2d 439 (1996). In this case, in opposing defendant’s
motion for summary disposition, plaintiff relied on his pleadings and documentary evidence.
Because plaintiff was not misled by defendant’s citing the wrong subrule, the trial court did not
err in considering documentary evidence and could consider the motion pursuant to
MCR 2.116(C)(10). Accordingly, we review this motion under the standard for
MCR 2.116(C)(10). See Decker v Flood, 248 Mich App 75, 80; 638 NW2d 163 (2001)
(“[B]ecause it is clear that the court relied on evidence outside the pleadings in order to make its
determination that [the plaintiff’s expert] did not qualify as an expert under MCL 600.2169, we
review this motion under the standard for MCR 2.116(C)(10).”).
Summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). “When
considering such a motion, a trial court must consider all evidence submitted by the parties in the
light most favorable to the party opposing the motion.” Id. “A motion under MCR 2.116(C)(10)
may only be granted when there is no genuine issue of material fact. A genuine issue of material
fact exists when the record leaves open an issue upon which reasonable minds might differ.” Id.
(quotation marks and citations omitted).
“Whether an expert may provide standard of care testimony at trial is governed by
MCL 600.2169. However, whether an affidavit of merit signed by an expert is adequate is
governed by MCL 600.2912d.” Jones, 310 Mich App at 199-200. MCL 600.2912d requires that
plaintiff’s counsel “ ‘reasonably believes’ that the affiant ‘meets the requirements’ of
MCL 600.2169, not that the affiant actually meet those requirements for purposes of trial
testimony.” Id. at 200. “The controlling question under MCL 600.2912d is whether plaintiff’s
counsel had a reasonable belief that the affiant would qualify.” Id. at 200. “The fact that the
Legislature used the language ‘reasonably believes’ demonstrates that there will be cases in which
counsel had such a reasonable belief even though the expert is ultimately shown not to meet the
criteria of MCL 600.2169(1).” Id.
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MCL 600.2169(1) provides, in pertinent part:
In an action alleging medical malpractice, a person shall not give expert
testimony on the appropriate standard of practice or care unless the person is
licensed as a health professional in this state or another state and meets the
following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is
a specialist, specializes at the time of the occurrence that is the basis for the action
in the same specialty as the party against whom or on whose behalf the testimony
is offered. However, if the party against whom or on whose behalf the testimony is
offered is a specialist who is board certified, the expert witness must be a specialist
who is board certified in that specialty. [Emphasis added.]
The requirement to “match” the expert’s specialty to that of the defendant doctor is
mandatory. “If the defendant is a specialist, the expert witness must, at the time of the occurrence
that forms the basis of the action, specialize in the same specialty, and subspecialty if applicable,
as the defendant. MCL 600. 2169(1)(a)[.]” Gonzalez v St John Hosp & Med Ctr (On
Reconsideration), 275 Mich App 290, 296-297; 739 NW2d 392 (2007). If an expert does not meet
the requirements of MCL 600.2169, the expert is not qualified to offer testimony to the applicable
standard of practice. See Woodard, 476 Mich at 575-576 (holding that a pediatrician was not
qualified to testify against a pediatric critical care specialist, and an infectious disease physician
was not qualified to testify against a general internal medicine physician); Decker, 248 Mich App
at 82-83 (holding that an endodontist who specialized in performing root canals was not qualified
to offer expert testimony on the standard of practice of a general practitioner dentist who performed
root canals).
At the time of the alleged malpractice, defendant was board-certified in general surgery.
In the AOM, Dr. Coats asserted that he was board-certified in orthopedic and hand surgery. The
trial court concluded that, because Dr. Coats was a hand surgeon and a board-certified orthopedic
surgeon, he was qualified to testify and to sign the AOM. Defendant argues that Dr. Coats was
not qualified to offer expert testimony regarding the applicable standard of care in the instant case
because general surgery is a distinct and separate board certification from orthopedic surgery and
surgery of the hand. It is undisputed that plaintiff’s affiant, Dr. Coats, was board-certified in a
different specialty than defendant. Therefore, the trial court abused its discretion when it
concluded that Dr. Coats satisfied the statutory requirements of MCL 600.2169 because Dr. Coats
was not board-certified in general surgery.
The next question is whether, at the time the affidavit of merit was prepared, plaintiff’s
counsel reasonably believed that Dr. Coats met the requirements of MCL 600.2169(1)(a). Jones,
310 Mich App at 200. Defendant argues that plaintiff’s counsel’s belief that Dr. Coats met the
requirements of MCL 600.2169(1)(a) was not reasonable because a “simple internet search”
indicated that defendant specialized in general surgery. The internet search attached to defendant’s
motion to dismiss indicated that defendant specialized in general surgery. In the trial court,
plaintiff’s counsel argued that he made a “good faith effort” to comply with MCL 600.2912d and
that he reasonably believed Dr. Coats qualified as an expert based on the fact that Dr. Coats was a
board-certified orthopedic surgeon specializing in hand surgery. Plaintiff’s counsel also asserted
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that defendant “seem[ed] not to specialize in anything,” yet acknowledged that defendant was
board-certified in general surgery. On appeal, plaintiff argues for the first time that defendant’s
board certifications are “irrelevant when looking at an expert’s qualifications because [defendant]
was practicing [orthopedic medicine] in which he is not board-certified.”
We have held that MCL 600.2169(1) “requires that only a single relevant specialty or board
certification match, not that multiple specialties or board certifications match.” Gonzalez, 275
Mich App at 300. This Court has also recognized that if a defendant is or could be board-certified,
but was not practicing in such a speciality at the time of the alleged malpractice, the expert need
not be board certified. Thus, in Reeves v Carson City Hosp (On Remand), 274 Mich App 622,
623; 736 NW2d 284 (2007), the defendant physician was board-certified in family medicine but
was practicing emergency medicine at the time of the alleged malpractice. The plaintiffs offered
an expert witness who was board-certified in emergency medicine but was not board-certified in
family medicine. Id. The Reeves Court held that
because [the defendant physician] was practicing emergency medicine at the time
of the alleged malpractice and potentially could obtain a board certification in
emergency medicine, she was a “specialist” in emergency medicine under the
holding in Woodard. Thus, plaintiffs would need a specialist in emergency
medicine to satisfy MCL 600.2169[.] [Id. at 630.]
However, Reeves does not appear to apply here because plaintiff did not assert below that, at the
time of the alleged malpractice, defendant was practicing outside of his board certification in
general surgery, and there is no evidence that defendant did so.
Plaintiff’s counsel reasserts that he reasonably believed that Dr. Coats met the requirements
of MCL 600.2169 because of Dr. Coats’ “extensive experience in treating and diagnosing carpal
tunnel.” However, as indicated, MCL 600.2169(1)(a) explicitly states that “if the party against
whom or on whose behalf the testimony is offered is a specialist who is board-certified, the expert
witness must be a specialist who is board-certified in that specialty.” (Emphasis added.)
Therefore, plaintiff’s argument has no merit. Given the clear language of the statute, there is no
evidence to support a finding that plaintiff’s counsel reasonably believed that Dr. Coats was
qualified to sign the AOM because Dr. Coats was not board-certified in general surgery. As a
result, the AOM was nonconforming.
A nonconforming affidavit will toll the period of limitation until the validity of the affidavit
is successfully challenged in subsequent judicial proceedings. Kirkaldy v Rim, 478 Mich 581, 586;
734 NW2d 201 (2007). If an affidavit is found to be nonconforming, the proper remedy is
dismissal without prejudice, and the plaintiff has whatever time remains in the period of limitations
to file a complaint with a conforming affidavit. Id. Therefore, because the AOM was
nonconforming, the trial court erred by denying defendant’s motion to dismiss and plaintiff’s
surviving claims should have been dismissed without prejudice. It will be the obligation of the
trial court to calculate the days remaining before the expiration of the statute of limitations.
Affirmed in part, reversed in part, and we remand to the trial court with instructions that it
enter an order granting summary disposition under MCR 2.116(C)(7) in part, and to dismiss the
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surviving claims without prejudice as a result of the nonconforming affidavit of merit. We do not
retain jurisdiction.
/s/ Jonathan Tukel
/s/ Deborah A. Servitto
/s/ /Michelle M. Rick
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