Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
FILED JULY 29, 2011
STATE OF MICHIGAN
SUPREME COURT
DUJUAN LIGONS, Personal Representative
of the Estate of EDRIS LIGONS,
Plaintiff-Appellant,
v No. 139978
CRITTENTON HOSPITAL, a/k/a
CRITTENTON HOSPITAL MEDICAL
CENTER, DAVID BRUCE BAUER, M.D.,
and ROCHESTER EMERGENCY GROUP,
P.C.,
Defendants-Appellees.
BEFORE THE ENTIRE BENCH
ZAHRA, J.
We are called upon to answer the question whether a medical malpractice suit
must be dismissed if a defective affidavit of merit (AOM) is filed after both the
limitations period and the saving period have expired. We hold that in such cases,
dismissal with prejudice must follow because allowing amendment of the deficient AOM
would directly conflict with the statutory scheme governing medical malpractice actions,
the clear language of the court rules, and precedent of this Court. Accordingly, we affirm
the judgment of the Court of Appeals dismissing plaintiff’s case with prejudice.
I. FACTS AND PROCEDURAL HISTORY
Edris Ligons underwent a colonoscopy on January 14, 2002, and four days later
developed vomiting, diarrhea, chills, and fever.1 On January 22, 2002, still suffering
from those symptoms, Ligons went to the emergency room at defendant Crittenton
Hospital, where she was treated by defendant Dr. David Bauer. An abdominal x-ray
suggested the possibility of a partial small-bowel obstruction. When Ligons refused to be
admitted to the hospital, she was given antibiotics, treated for dehydration, and
discharged with instructions to follow up with her treating physician the next day.
Ligons did so and was immediately sent to the emergency room, where she was admitted.
After extensive testing and the involvement of seven doctors, it was determined
that surgery was necessary. Ligons initially refused any surgery, but eventually agreed.
Exploratory surgery performed on January 24, 2002, revealed a perforated colon, an
inflamed pelvic mass, and an abscess. The exploratory surgery further showed that
Ligons had an advanced form of liver failure and that her liver had become hard and
rocklike in appearance. Ligons had been an alcoholic for more than 30 years and
suffered from acute cirrhosis with ascites, alcoholic pancreatitis, alcoholic hepatitis,
coagulopathy, diverticulosis coli, and colon polyps. Removal of her colon was
1
The physician who performed the colonoscopy is no longer a party to this suit.
2
impossible because of these preexisting conditions. Ligons never recovered from the
surgery and died on January 29, 2002.
Plaintiff was appointed personal representative of Ligon’s estate on February 22,
2005, and delivered to defendants a notice of intent to sue2 (NOI) on June 8, 2005. On
October 21, 2005, plaintiff delivered a supplemental NOI providing more detail regarding
proximate cause. He filed a complaint in the Oakland Circuit Court on April 7, 2006,
accompanied by two AOMs.
The first AOM, signed March 8, 2005, was executed by Dr. George Sternbach, an
emergency-medicine specialist. Although the AOM contained 23 paragraphs regarding
the manner in which the standard of care had been breached, only two of those
paragraphs pertained specifically to this case:
v. [The failure to a]dmit the patient to the hospital on January 22,
2002.
w. [The failure to o]btain appropriate consults on January 22, 2002.
Regarding the manner in which these breaches were the proximate cause of the injury,
the AOM provided, “As a direct and proximate cause of the imprudent acts and omission
committed by the individuals identified herein, Edris Ligons, died.”
The second AOM, signed on June 17, 2005, by Dr. Fred Thomas, did not address
the required standard of practice or care, the breach of the standard of care, or the actions
that should have been taken or omitted to comply with the standard of care. Rather, the
Thomas AOM addressed only the manner in which the breach of the standard of practice
2
See MCL 600.2912b.
3
or care was the proximate cause of the alleged injury: “It is my opinion that had the
defendants admitted the patient to the hospital on January 22, 2002, and obtained the
appropriate consults on January 22, 2002, as outlined in Dr. Sternbach’s affidavit[,] that
Edris Ligons would not have died.”
In March 2007, Bauer and defendant Rochester Emergency Group, P.C. (Bauer’s
practice group) moved for summary disposition, arguing that plaintiff’s NOIs and AOMs
did not comply with the governing statutes. In April 2007, Crittenton concurred in the
motion. The trial court denied defendants’ motions on May 22, 2007.
Bauer and Rochester Emergency applied for leave to file an interlocutory appeal,
which the Court of Appeals initially denied.3 Bauer and Rochester Emergency then
applied for leave to appeal in this Court and, in lieu of granting their application, we
remanded the case to the Court of Appeals for consideration as on leave granted.4 The
Court of Appeals later granted Crittenton’s application for leave to file a delayed cross-
appeal.5
On remand from this Court, the Court of Appeals concluded that plaintiff’s two
NOIs collectively satisfied the requirements of MCL 600.2912b.6 But a majority of the
panel disagreed with the trial court’s ruling that the AOMs were sufficient, concluding
3
Ligons v Crittenton Hosp, unpublished order of the Court of Appeals, entered January
16, 2008 (Docket No. 278622).
4
Ligons v Crittenton Hosp, 482 Mich 1005 (2008).
5
Ligons v Crittenton Hosp, unpublished order of the Court of Appeals, entered March 2,
2009 (Docket No. 288793).
6
Ligons v Crittenton Hosp, 285 Mich App 337, 343-349; 776 NW2d 361 (2009).
4
that neither AOM contained the required statement describing “[t]he manner in which the
breach of the standard of practice or care was the proximate cause of the injury alleged in
the notice.”7 The majority reasoned that “it is insufficient to merely allege that the
defendant’s alleged negligence caused the injury,” and the AOMs “contain[ed] no
explanation regarding how Dr. Bauer’s decision not to admit the decedent on January 22,
2002, or obtain appropriate consultations was the proximate cause of the decedent’s
death.”8 “[E]ven when read as a whole,” the AOMs “establish[ed] no connection
between the purpose of the consultations, or what condition they might have revealed,
and the cause of the decedent’s death,” nor did they explain how a one-day delay in
admitting Ligons resulted in death rather than recovery.9
Recognizing that the defective AOMs required dismissal of the case under
Kirkaldy v Rim,10 the Court of Appeals further held that dismissal in this case had to be
with prejudice.11 The Court of Appeals reasoned that, although filing a complaint and an
AOM tolls the statutory limitations period pursuant to MCL 600.5856(a) until the AOM
7
MCL 600.2912d(1)(d); Ligons, 285 Mich App at 349-351. The Court of Appeals partial
dissent would have found the AOMs sufficient to comply with MCL 600.2912d, but
acknowledged that the AOMs did not specify how the failure to admit Ligons to the
hospital and obtain the appropriate consults on January 22, 2002, caused Ligons’s death
or how taking these actions could have prevented her death eight days later. Ligons, 285
Mich App at 360-361 (FITZGERALD, J., concurring in part and dissenting in part).
8
Id. at 350 (majority opinion), citing Roberts v Mecosta Co Gen Hosp (After Remand),
470 Mich 679, 699 n 16; 684 NW2d 711 (2004).
9
Ligons, 285 Mich App at 350.
10
Kirkaldy v Rim, 478 Mich 581; 734 NW2d 201 (2007).
11
Ligons, 285 Mich App at 354.
5
is successfully challenged,12 tolling was unavailable here because plaintiff had not filed
his complaint within the limitations period. Plaintiff filed his complaint after the
limitations period expired, but within the saving period afforded him as a personal
representative under MCL 600.5852. Under Waltz v Wyse,13 statutes that toll periods of
limitations or statutes of repose, such as MCL 600.5856(a), do not toll saving
provisions.14 The Court of Appeals concluded that no tolled time remained during which
plaintiff could refile his suit after defendants successfully challenged his AOMs. Thus,
dismissal with prejudice was required on statute-of limitations-grounds.15
Finally, the Court of Appeals rejected plaintiff’s argument that he should be
permitted to amend his defective AOMs under the then existing version of MCR
2.118(A), which permitted the amendment of “pleadings.” The Court noted that the term
“pleading” was restrictively defined by MCR 2.110(A) to include only complaints, cross-
claims, counterclaims, third-party complaints, answers to any of these documents, and
replies to those answers. This list does not include “mandatory attachments” such as
AOMs.16 Finding no “positive authority suggesting that an affidavit of merit may be
amended pursuant to MCR 2.118(A),” the Court concluded that “the only permissible
remedy for a defective affidavit of merit is the one prescribed in Kirkaldy, which is
12
Id. at 353-354, citing Kirkaldy, 478 Mich at 585-586.
13
Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004).
14
Ligons, 285 Mich App at 352, 354.
15
Id. at 354.
16
Id. at 355.
6
dismissal.”17 Accordingly, the Court of Appeals reversed the trial court and remanded
the case for entry of an order of dismissal with prejudice.18
Plaintiff applied to this Court for leave to appeal the Court of Appeals’ decision.
We granted leave and directed the parties to address the following issues: “(1) whether
the plaintiff may amend his affidavits of merit in light of Bush v Shabahang, 484 Mich
156 [772 NW2d 272] (2009), and/or MCL 600.2301, and (2) whether the recent
amendment of MCR 2.118 applies to the plaintiff’s affidavits of merit.”19
II. STANDARD OF REVIEW
We review de novo a trial court’s ruling on a motion for summary disposition.20
This case involves questions of statutory interpretation, which we also review de novo.21
We interpret court rules using the same principles that govern the interpretation of
statutes.22 Our goal when interpreting and applying statutes or court rules is to give effect
to the plain meaning of the text. If the text is unambiguous, we apply the language as
written without construction or interpretation.23
17
Id.
18
Id. at 356.
19
Ligons v Crittenton Hosp, 486 Mich 977 (2010).
20
Haynes v Neshewat, 477 Mich 29, 34; 729 NW2d 488 (2007).
21
Id.
22
Marketos v American Employers Ins Co, 465 Mich 407, 412-413; 633 NW2d 371
(2001).
23
See Haynes, 477 Mich at 35; Marketos, 465 Mich at 413.
7
III. ANALYSIS
A. INTERPRETATION AND APPLICATION OF MCL 600.2912d
MCL 600.2912d was enacted in 1986 and amended in 1993 as an element of broad
tort reforms established by the Legislature.24 In part, the legislation placed “enhanced
responsibilities” on medical malpractice plaintiffs.25 MCL 600.2912d(1) requires the
following:
Subject to subsection (2), the 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].[26] 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:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard of
practice or care was breached by the health professional or health facility
receiving the notice.
(c) The actions that should have been taken or omitted by the health
professional or health facility in order to have complied with the applicable
standard of practice or care.
24
1986 PA 178; 1993 PA 78; see Scarsella v Pollak, 461 Mich 547, 548; 607 NW2d 711
(2000); Solowy v Oakwood Hosp Corp, 454 Mich 214, 228; 561 NW2d 843 (1997).
25
Solowy, 454 Mich at 228.
26
MCL 600.2169 governs the qualifications of expert witnesses in medical malpractice
actions.
8
(d) The manner in which the breach of the standard of practice or
care was the proximate cause of the injury alleged in the notice. [Emphasis
added.]
MCL 600.2912d(2) and (3) extend the time during which an AOM may be filed under
certain circumstances:
(2) Upon 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).
(3) If the defendant in an action alleging medical malpractice fails to
allow access to medical records within the time period set forth in [MCL
600.2912b(6)], the affidavit required under subsection (1) may be filed
within 91 days after the filing of the complaint.
In Scarsella v Pollak,27 this Court addressed the consequences of a plaintiff’s
failure to file an AOM with the complaint as required by the statute. We stressed the
Legislature’s “‘mandatory and imperative’” language: 28 MCL 600.2912d(1) requires that
a plaintiff “shall file with the complaint an affidavit of merit . . . .”29 In light of this
legislative requirement, we held that “‘for statute of limitations purposes in a medical
malpractice case, the mere tendering of a complaint without the required affidavit of
merit is insufficient to commence the lawsuit.’”30 We rejected the plaintiff’s argument
that he should have been permitted to amend his complaint by appending an untimely
27
Scarsella, 461 Mich 547.
28
Scarsella, 461 Mich at 549, quoting Scarsella v Pollak, 232 Mich App 61, 64; 591
NW2d 257 (1998).
29
Emphasis added.
30
Scarsella, 461 Mich at 549, quoting Scarsella, 232 Mich App at 64.
9
AOM, which would have been related back to the time the complaint was filed under
MCR 2.118(D),31 because permitting such amendment would have “‘effectively
repeal[ed] the statutory affidavit of merit requirement’”:32
“[M]edical 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.”[33]
In other words, Scarsella established that, when a plaintiff “wholly omits to file
the affidavit required by MCL 600.2912d(1),” “the filing of the complaint is ineffective,
and does not work a tolling of the applicable period of limitation.”34 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.35
31
At the time Scarsella was decided, MCR 2.118(D) provided:
Except to demand a trial by jury under MCR 2.508, an amendment
relates back to the date of the original pleading if the claim or defense
asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth, or attempted to be set forth, in the original pleading.
32
Scarsella, 461 Mich at 550, quoting Scarsella, 232 Mich App at 65.
33
Scarsella, 461 Mich at 550, quoting Scarsella, 232 Mich App at 65.
34
Scarsella, 461 Mich at 553.
35
Id. at 551-552.
10
Dismissal without prejudice is proper, however, if the untolled limitations period has not
yet expired.36
The issue whether a timely filed yet defective AOM tolled the limitations period
was resolved in Kirkaldy. Kirkaldy observed that, under MCL 600.5856(a),37 MCL
600.2912d, and Scarsella, “the period of limitations is tolled when a complaint and
affidavit of merit are filed and served on the defendant.”38 Distinguishing a wholly
absent AOM from a potentially defective but timely filed AOM, we stressed the holding
in Saffian v Simmons39 that “‘when an affidavit is filed, it is presumed valid. It is only in
subsequent judicial proceedings that the presumption can be rebutted.’”40 Accordingly,
Kirkaldy held:
[A] complaint and affidavit of merit toll the period of limitations
until the validity of the affidavit is successfully challenged in “subsequent
judicial proceedings.” Only a successful challenge will cause the affidavit
to lose its presumption of validity and cause the period of limitations to
resume running.
36
Id. (discussing the result in Gregory v Heritage Hosp, decided sub nom Dorris v
Detroit Osteopathic Hosp Corp, 460 Mich 26; 594 NW2d 455 [1999]).
37
MCL 600.5856 provides, in pertinent part:
The statutes of limitations or repose are tolled in any of the
following circumstances:
(a) At the time the complaint is filed, if a copy of the summons and
complaint are served on the defendant within the time set forth in the
supreme court rules.
38
Kirkaldy, 478 Mich at 585.
39
Saffian v Simmons, 477 Mich 8; 727 NW2d 132 (2007).
40
Kirkaldy, 478 Mich at 586, quoting Saffian, 477 Mich at 13.
11
Thus, if the defendant believes that an affidavit is deficient, the
defendant must challenge the affidavit. If that challenge is successful, the
proper remedy is dismissal without prejudice. Scarsella, [461 Mich] at
551-552. The plaintiff would then have whatever time remains in the
period of limitations within which to file a complaint accompanied by a
conforming affidavit of merit.[41]
In Waltz, this Court clarified that MCL 600.5856, by its terms, tolls only periods
of limitations or statutes of repose.42 A saving statute is neither a statute of limitations
providing a limitations period nor a statute of repose; rather, it is “an ‘exception to the
statute of limitations’” that allows “commencement of a wrongful death action as many
as three years after the applicable statute of limitations has expired.”43 In other words,
once the limitations period has run, tolling is no longer available, even if a saving statute
would still allow commencement of the action.
Read together, the cases establish four points necessary to resolving the case
currently before us. First, a plaintiff’s failure to file a timely AOM or to file a timely
AOM that satisfies the requirements of MCL 600.2912d(1) generally results in the
dismissal of the case.44 Second, that dismissal must be without prejudice unless other
41
Kirkaldy, 478 Mich at 586.
42
Waltz, 469 Mich at 650.
43
Id. at 650-651, quoting Lindsey v Harper Hosp, 455 Mich 56, 65; 564 NW2d 861
(1997); see also Miller v Mercy Mem Hosp, 466 Mich 196, 202; 644 NW2d 730 (2002)
(“[MCL 600.5852] is a saving statute, not a statute of limitations.”).
44
Although Justice CAVANAGH discusses Bush in his dissent, he does not address why
dismissal was inappropriate here given Kirkaldy’s holding that dismissal is the
appropriate remedy for a defective AOM.
12
grounds for the dismissal exist, such as the expiration of the limitations period.45 Third,
the timely filing of a defective AOM with the complaint tolls the limitations period unless
45
Regardless of the fact that a provision for “mandatory dismissal with prejudice” is
unnecessary in MCL 600.2912(d) because the statute of limitations necessitates
dismissal, Justice HATHAWAY’s dissent proceeds with a misguided and fruitless search
for legislative direction that a defective AOM requires “mandatory dismissal with
prejudice.” Unsurprisingly, she finds no such mandate, concluding instead that the
Legislature rejected “mandatory dismissal” in light of its interpretation of a provision of
the initial notice legislation that the Legislature never adopted.
Although “actions of the Legislature in considering various alternatives in
language in statutory provisions before settling on the language actually enacted” may
constitute a legitimate form of legislative history, In re Certified Question from the
United States Court of Appeals for the Sixth Circuit, 468 Mich 109, 115 n 5; 659 NW2d
597 (2003), Justice HATHAWAY’s use of it here exemplifies the shortcomings inherent in
that approach. To reasonably discern legislative intent from rejected language, the
rejected provision should be considered as a whole, rather than piecemeal as Justice
HATHAWAY does by only looking at the first sentence of the provision. The full
provision stated:
Except as otherwise provided in this subsection, in an action alleging
medical malpractice, the court shall dismiss a claim not included in the
notice required under [MCL 600.2912f]. This subsection does not apply to
a claim that results from previously unknown information gathered during
discovery. [Format altered from strikethrough/insert format to show
language as proposed.]
On this same issue, Justice MARKMAN observed the following in Bush:
As an initial matter, this seems entirely unrelated to the statute of
limitations under which dismissal is granted. The Legislature’s rejection of
an unrelated provision can hardly be used to alter the clear meaning of a
statute. It seems far more reasonable to conclude that the Legislature
rejected this provision in favor of [MCL 600.2912b(3)], which provides for
similar treatment of the same subject matter: undiscovered claims. . . .
How can [Justice HATHAWAY] draw an informed conclusion concerning
legislative history from a provision never enacted without even considering
a provision that has been enacted and actually substituted for the never-
13
and until the court finds the AOM defective. Fourth, only limitations periods may be
tolled; the timely filing of a defective AOM cannot toll a saving period.46
B. THE AFFIDAVITS OF MERIT WERE INSUFFICIENT
As noted in part III(A), MCL 600.2912d(1) sets forth several requirements for
affidavits of merit: (1) a certification 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, (2) the applicable standard of practice or care, (3) the
health professional’s opinion that the applicable standard of practice or care was breached
by the health professional or health facility receiving the notice, (4) the actions that
should have been taken or omitted by the health professional or health facility in order to
have complied with the applicable standard of practice or care, and (5) the manner in
which the breach of the standard of practice or care was the proximate cause of the injury
alleged in the notice. The failure to include any of the required information renders the
affidavit of merit insufficient.
enacted provision? [Bush, 484 Mich at 203-204 (MARKMAN, J.,
dissenting).]
46
We decline plaintiff’s invitation to overrule the prior decisions of this Court instead of
adhering to the doctrine of stare decisis. “Stare decisis means ‘To abide by, or adhere to,
decided cases.’” Robinson v Detroit, 462 Mich 439, 463 n 20; 613 NW2d 307 (2000),
quoting Black’s Law Dictionary (rev 4th ed), p 1577. As both this Court and the United
States Supreme Court have recognized, “[s]tare decisis is generally ‘the preferred course
because it promotes the evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.’” Robinson, 462 Mich at 463, quoting Hohn v
United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). Plaintiff has
not argued why we should veer away from the stare decisis course, and we decline to
revisit the body of caselaw involved here.
14
Plaintiff’s AOMs failed to provide any statement of the manner in which the
breach of the standard of care was the proximate cause of the injury alleged. Dr. George
Sternbach’s AOM provided only that “[a]s a direct and proximate cause of the imprudent
acts and omission committed by the individuals identified herein, Edris Ligons, died.”
Dr. Fred Thomas’s AOM provided only: “It is my opinion that had the defendants
admitted the patient to the hospital on January 22, 2002, and obtained the appropriate
consults on January 22, 2002, as outlined in Dr. Sternbach’s affidavit that Edris Ligons
would not have died.”47 We have often said that it is insufficient to simply state the result
when required to state the manner in which there was a breach: The answer to “How was
the standard of care breached?” is never “The standard of care was breached.”48
Similarly, answering the question “How was the breach the proximate cause of the
injury?” requires more than “The breach caused the injury.” In other words, the “‘mere
correlation between alleged malpractice and an injury is insufficient to show proximate
cause.’”49 Contrary to the dissents’ conclusions, this analysis does not require a
47
Notably, Dr. Thomas’s AOM did not include any statements regarding the applicable
standard of practice or care, his opinion that the applicable standard of practice or care
was breached by the health professional or health facility receiving the notice, or the
actions that should have been taken or omitted by the health professional or health facility
in order to have complied with the applicable standard of practice or care. Therefore,
regardless of his statement of proximate cause, Dr. Thomas’s AOM was statutorily
deficient.
48
See Roberts, 470 Mich at 696 n 14; Boodt v Borgess Med Ctr, 481 Mich 558, 560-561;
751 NW2d 44 (2008).
49
Swanson v Port Huron Hosp (On Remand), 290 Mich App 167, 176; ___ NW2d ___
(2010) (citation omitted).
15
heightened level of specificity; rather, it simply gives meaning to the level of specificity
required by the statute itself. The Legislature requires a statement not just that a breach
caused the injury, but the manner in which the breach caused the caused the injury.50
In this case, even the Court of Appeals dissent acknowledged that the AOMs were
silent regarding how the defendants’ actions or inactions caused Ligons’s death. A
statement answering how is precisely what MCL 600.2912d(1)(d) requires, and this case
demonstrates the importance of that requirement. Ligons’s colon was perforated by a
doctor (who is not a defendant here) eight days before she went to the hospital. She then
refused to be admitted to the hospital, only to come back a day later, when the perforated
50
We also note that the dissents’ interpretations render superfluous the words “manner in
which” as used in MCL 600.2912d(1)(d). Simply stated, the dissents do not read MCL
600.2912d(1)(d) as requiring a statement of “[t]he manner in which the breach of the
standard of practice or care was the proximate cause of the injury alleged in the notice.”
Instead, the statute is read only to require a statement that “the breach of the standard of
practice or care was the proximate cause of the injury alleged in the notice.” Because the
dissents’ reading of MCL 600.2912d(1)(d) renders the words “manner in which”
meaningless, it must be rejected. See Pittsfield Charter Twp v Washtenaw Co, 468 Mich
702, 714; 664 NW2d 193 (2003); see also Grimes v Dep’t of Transp, 475 Mich 72, 89;
715 NW2d 275 (2006). Although Justice HATHAWAY insists that “[o]ur courts have
consistently interpreted the word ‘manner’ . . . as allowing for a single word description
such as ‘homicide,’ ‘suicide,’ or ‘accident,’” post at 6, it is noteworthy that she does not
cite a single case that held that the requirement of MCL 600.2912d(1)(d) to state “[t]he
manner in which the breach of the standard of practice or care was the proximate cause of
the injury alleged in the notice” can be satisfied by a single word description such as
“malpractice” or even by “a similarly succinct description such as ‘the malpractice
caused the death,’” post at 7. This is because no case has ever so held inasmuch as such a
holding would be inconsistent with the explicit directive of MCL 600.2912d(1)(d) to state
“[t]he manner in which the breach of the standard of practice or care was the proximate
cause of the injury alleged in the notice.” (Emphasis added.) Merely stating that “the
malpractice caused the death” does not explain the manner in which the malpractice
caused the death.
16
colon was discovered. With so many different parties and procedures involved, as well
as Ligons’s own medical history, plaintiff must state how defendants’ alleged negligence
in not diagnosing the perforated colon one day earlier was the proximate cause of
Ligons’s death. Plaintiff failed to do so, as required by MCL 600.2912d(1)(d); therefore,
the AOMs were statutorily deficient.51
C. A PLAINTIFF MAY NOT AMEND A DEFECTIVE AFFIDAVIT OF MERIT
Plaintiff nonetheless argues that MCR 2.112, MCR 2.118, MCL 600.2301, and
Bush v Shabahang,52 permit retroactive amendment of defective AOMs. We are not
persuaded that these authorities compel that conclusion, one that is directly contrary to
the rules of Scarsella and Kirkaldy, which call for dismissal in the event of an absent or
defective AOM.53
51
Justice HATHAWAY argues that the statements contained in the NOI can satisfy the
AOM requirements. See post at 7-8. This argument fails to appreciate, however, that
MCL 600.2912d(1)(d) very clearly states that the AOM “shall contain a statement”
regarding “[t]he manner in which the breach of the standard of practice or care was the
proximate cause of the injury alleged in the notice.” (Emphasis added.) It does not state
that either the NOI or the AOM shall contain such a statement; it states that the AOM
shall contain such a statement. Therefore, whether the NOI contains such a statement is
irrelevant to the question whether the AOM contains the statements required by MCL
600.2912d(1).
52
Bush, 484 Mich 156.
53
Contrary to Justice HATHAWAY’s contention, see post at 12-13, Kirkaldy is not
significantly distinguishable from the instant case. Kirkaldy held that the appropriate
remedy for a defective AOM is dismissal. The fact that the defects in the affidavits of
merit are not identical does not change the fact that the appropriate remedy remains
dismissal.
17
1. AN AFFIDAVIT OF MERIT IS NOT A “PLEADING” THAT MAY BE AMENDED
UNDER THE APPLICABLE VERSION OF MCR 2.118
Plaintiff urges that amendment should be permitted under the version of MCR
2.118 in effect at the time this case was pending in the trial court.54 MCR 2.118 governs
amended and supplemental pleadings. Both the prior and current versions of MCR
2.118(A)(1) permit a party to “amend a pleading once as a matter of course within 14
days after being served with a responsive pleading by an adverse party . . . .”55 MCR
2.118(A)(2) further provides that “[e]xcept as provided in subrule (A)(1), a party may
amend a pleading only by leave of the court or by written consent of the adverse party.
Leave shall be freely given when justice so requires.” Former MCR 2.118(D), which
governed the relation back of amendments, provided, “An amendment that adds a claim
or a defense relates back to the date of the original pleading if the claim or defense
asserted in the amended pleading arose out of the conduct, transaction, or occurrence set
forth, or attempted to be set forth, in the original pleading.”56
By its terms, former MCR 2.118 applied only to a “pleading.” MCR 2.110(A)
defines “pleading” for purposes of the Michigan Court Rules restrictively to include
“only: (1) a complaint, (2) a cross-claim, (3) a counterclaim, (4) a third-party complaint,
(5) an answer to a complaint, cross-claim, counterclaim, or third-party complaint, and (6)
54
As discussed later in this opinion, MCR 2.112 and MCR 2.118 were amended,
effective May 1, 2010. 485 Mich ___ (order entered February 16, 2010).
55
This one-time, automatic ability to revise may be exercised “within 14 days after
serving the pleading if it does not require a responsive pleading.” MCR 2.118(A)(1).
56
Former MCR 2.118(D) (version effective January 1, 2001, through April 30, 2010, see
463 Mich at clvii [2000]; 485 Mich at ____ [order entered February 16, 2010]).
18
a reply to an answer. No other form of pleading is allowed.”57 As with statutes, when a
court rule “specifically defines a given term, that definition alone controls.”58 An AOM,
even if required to be appended to a complaint, is not included in this restrictive
definition of a “pleading.” Plaintiff relies heavily on a statement in Barnett v Hidalgo,59
which described an AOM as “part of the pleadings” in determining that an AOM is
“generally admissible as an adoptive admission[.]” But plaintiff fails to appreciate the
context in which the statement was made: describing a document as “part” of the
pleadings when addressing an evidentiary issue does not turn the document into a
pleading for purposes of MCR 2.118(D) if it does not meet the definition in MCR
2.110(A).60 Indeed, elsewhere Barnett clearly referred to the AOM as distinct from the
complaint, stating that AOMs “are required to accompany a complaint . . . .” Id. at 160.
Under MCR 2.110(A)(1), for purposes of the court rules it is the “complaint” itself that
57
MCR 2.110(A) (emphasis added; formatting altered).
58
Haynes, 477 Mich at 35.
59
Barnett v Hidalgo, 478 Mich 151, 161; 732 NW2d 472 (2007).
60
Further, the Barnett Court’s conclusion that an AOM may be offered at trial as an
admission was based on the following logic: an AOM is a “sworn statement” regarding
the issues addressed and “by filing the affidavit of merit with the court, [a] plaintiff
manifests ‘an adoption or belief in its truth.’” Barnett, 478 Mich at 160-161, quoting
MRE 801(d)(2)(B), which permits admission of “a statement of which the party has
manifested an adoption or belief in its truth.” Barnett also cited former MRPC 3.3(a)(4),
which refered to a lawyer’s general duty to refrain from offering “evidence that the
lawyer knows to be false.” Id. at 161; see 488 Mich ___, ___ (order entered October 26,
2010). It supported this logic, in turn, not by characterizing an AOM as a pleading, but
by reference to other cases permitting the introduction of third-party affidavits—without
regard to whether they were filed with the pleadings—as adoptive admissions. Id. at 161
n 4.
19
constitutes a “pleading,” not the complaint and any document accompanying it. Barnett
neither held nor relied on the premise that an AOM is a pleading for purposes of the rule
permitting amendment of pleadings, MCR 2.118
Plaintiff also argues that the Court’s opinion in Scarsella compels the conclusion
that an AOM is a pleading. He stresses the Scarsella Court’s holding that “‘the mere
tendering of a complaint without the required affidavit of merit is insufficient to
commence the lawsuit.’”61 Then plaintiff notes that, pursuant to MCL 600.1901, which
applies generally to all civil actions, “[a] civil action is commenced by filing a complaint
with the court.” And he similarly notes that the general civil complaint tolling statute
cited in Scarsella, MCL 600.5856(a), permits tolling “[a]t the time the complaint is
filed . . . .” Because Scarsella held that a medical malpractice action is not
commenced—and tolling does not occur—if the complaint is not accompanied by an
AOM, plaintiff reasons that, for Scarsella to be consistent with MCL 600.1901 and MCL
600.5856(a), an AOM must be “part and parcel” of the complaint.
But Scarsella, like Barnett, did not rule that an AOM is a complaint or is “part and
parcel” of the complaint. Rather, the Court consistently referred to the complaint and
AOM as distinct documents. For example, the Court noted that “‘medical malpractice
plaintiffs must file more than a complaint; they “shall file with the complaint an affidavit
of merit . . . .”’”62 Importantly, Scarsella clarified that commencement of a medical
61
Scarsella, 461 Mich at 549, quoting Scarsella, 232 Mich App at 64.
62
Scarsella, 461 Mich at 549, quoting Scarsella, 232 Mich App at 64, quoting MCL
600.2912d(1) (emphasis added).
20
malpractice action is not governed solely by the general statutes applicable to civil suits.
Rather, medical malpractice suits are governed in detail by specific statutes unique to this
area of law. In contrast to the generic rule that a civil action may be commenced through
the mere filing of a complaint, MCL 600.2912b(1) establishes that, generally, “a person
shall not commence an action alleging medical malpractice . . . unless the person has
given the [defendants] written notice under this section not less than 182 days before the
action is commenced.”63 Similarly, as Scarsella held, pursuant to MCL 600.2912d(1) a
medical malpractice claimant must file not just a complaint, but “shall file with the
complaint an affidavit of merit . . . .”64 A defendant, moreover, is not simply required to
file an answer to the complaint, but must also file an affidavit of meritorious defense—
the counterpart to a plaintiff’s AOM—within 91 days after the plaintiff files an AOM.65
These specific statutes governing medical malpractice actions, which “appl[y] to
the more narrow realm of circumstances,” prevail over the more general rules applicable
to all civil actions.66 Accordingly, it does not necessarily follow that, simply because
other civil plaintiffs may commence suit by filing a complaint, an AOM is a complaint—
63
And see Boodt, 481 Mich at 562-563, which observed that a plaintiff “cannot
commence an action before he or she files a notice of intent that contains all the
information required under [MCL 600.2912b(4)]” and that, if the plaintiff fails to do so, a
subsequently filed complaint and affidavit of merit do not toll the period of limitations.
64
Emphasis added.
65
MCL 600.2912e(1). Instead of answering, a medical malpractice defendant also has a
unique alternative option to “file with the court an affidavit certifying that he or she was
not involved, either directly or indirectly, in the occurrence alleged in the action.” MCL
600.2912c(1).
66
Miller v Allstate Ins Co, 481 Mich 601, 613; 751 NW2d 463 (2008).
21
or is part and parcel of a complaint—particularly for purposes of applying the Michigan
Court Rules.67
Permitting amendment of a deficient AOM also runs directly counter to the
statutes governing medical malpractice suits, particularly MCL 600.2912d. By its terms,
MCL 600.2912d requires that a plaintiff obtain a qualified expert willing to review the
medical records and certify that the claim has merit because, in the expert’s opinion, each
defendant breached the applicable standard of practice or care, there were actions the
defendant should have taken or omitted in order to comply with the standard, and the
breach was the proximate cause of the injury alleged in the presuit notice.68 Consistently
with its purpose to certify merit at the outset of the case, MCL 600.2912d(1) directs that
the plaintiff “shall file” the AOM “with the complaint.” If the plaintiff is unable to
comply with this mandate, the statute provides two alternatives for recourse: MCL
600.2912d(2) permits the court to grant an additional 28 days in which to file the AOM
“[u]pon motion of a party for good cause shown,” and MCL 600.2912d(3) affords the
plaintiff “91 days after the filing of the complaint” to file the AOM if the defendant failed
“to allow access to medical records within the time period set forth in [MCL
600.2912b(6)].”
67
Plaintiff also cites Jackson v Detroit Med Ctr, 278 Mich App 532, 543-544; 753 NW2d
635 (2008), in which the Court of Appeals held that the trial court had discretion to
decide whether an AOM could be amended under MCR 2.118(A). The Jackson plaintiff
sought to amend an AOM that was sufficient under MCL 600.2912d(1) in order to assert
liability under new theories. Id. With regard to deficient AOMs such as those at issue
here, Jackson reiterated that, under Kirkaldy and Scarsella, the proper remedy is
dismissal. Id. at 543.
68
See MCL 600.2912d(1); Solowy, 454 Mich at 228.
22
Accordingly, the statute clearly conveys that the AOM must be provided within
the relevant time frames. For this reason, permitting a plaintiff to correct deficiencies in
the AOM through amendment as a matter of course within 14 days after service of a
responsive pleading, MCR 2.118(A)(1), and indefinitely thereafter by leave of the court
or consent of the adverse party, MCR 2.118(A)(2), would directly conflict with the
legislative remedies provided in MCL 600.2912d(2) and (3), which allow a plaintiff who
is unable to submit a conforming AOM with the complaint an additional 28 or 91 days,
respectively, to complete and submit the AOM. Just as the Scarsella Court reasoned in
rejecting retroactive “amendment” of untimely AOMs under MCR 2.118, permitting
amendment of a deficient AOM would similarly subvert the AOM statute by allowing
plaintiffs to routinely file complaints without conforming AOMs.69
Because permitting amendment of a defective AOM runs counter to the
established statutes, court rules, and cases governing this area of law, we hold that a
plaintiff may not amend a deficient AOM under the version of MCR 2.118 in effect
during the pendency of this suit in the trial court.
2. MCL 600.2301 AND BUSH v SHABAHANG DO NOT AUTHORIZE
AMENDMENT OF AN AFFIDAVIT OF MERIT
Next, plaintiff urges that we permit amendment of deficient AOMs under MCL
600.2301 and this Court’s 2009 decision in Bush.70 But retroactive amendment of a
deficient AOM has never been authorized under any court rule or statute, and as
69
Compare Scarsella, 461 Mich at 550.
70
Bush, 484 Mich 156.
23
explained in part III(C)(1), would actually be contrary to the specific statutory scheme
governing medical malpractice actions. This Court has long recognized that an
attachment to a complaint or pleading is neither a “process” nor a “proceeding” under
MCL 600.2301.71 In fact, this Court noted in 1892 that there was no statutory support for
allowing amendment of an affidavit on the ground that it was a process or a proceeding:
There is no statute now in force permitting amendments to
attachment affidavits, and such amendments have never been deemed
admissible under [How Stat] 7631, which provides that “the court in which
71
Even if an affidavit of merit is part of a “proceeding” and subject to amendment under
MCL 600.2301, Bush held that MCL 600.2301 requires an initial good-faith attempt to
comply with the statutory requirements. Plaintiff did not do so in this case. In Bush, 484
Mich at 183-184, the Court held that the defendant’s response to the plaintiff’s NOI,
stating “‘the current medical condition of Gary Bush was not in any way caused or
contributed by the activities of Dr. Shabahang,’” was “utterly lacking in a good-faith
attempt to comply.” The defendant’s statement demonstrated a lack of a good-faith
attempt to comply because it merely stated in a conclusory fashion that the defendant’s
alleged negligence did not cause the plaintiff’s injury. Indeed, every justice in Bush
agreed on this point. See id. at 182-184; id. at 205-206 (MARKMAN, J., dissenting).
Similarly, plaintiff’s statement here demonstrated a lack of a good-faith attempt to
comply because it merely stated in a conclusory fashion that defendants’ negligence
caused Ligons’s death. It did not at all explain the manner in which defendants’
negligence caused her death. Therefore, we respectfully disagree with Justice
CAVANAGH’s assertion that “the contents of the AOM do not evidence an utter lack of a
good-faith attempt to comply with the proximate-causation requirement of MCL
600.2912d(1)(d).” Post at 6.
Furthermore, contrary to Justice CAVANAGH’s contention, “defendant’s substantial
rights would be affected by permitting” MCL 600.2301 to cure what he refers to as the
“technical defect in the AOM . . . .” Post at 7. MCL 600.2912d(1)(d) very clearly states
that a medical malpractice plaintiff “shall file with the complaint an affidavit of merit”
and that this affidavit “shall contain a statement” regarding “[t]he manner in which the
breach of the standard of practice or care was the proximate cause of the injury alleged in
the notice.” (Emphasis added.) Allowing a medical malpractice plaintiff to proceed in an
action against a defendant even though the plaintiff did not provide such an affidavit
affects the defendant’s substantial right to have the law mean what it says.
24
any action shall be pending shall have power to amend any process,
pleading, or proceeding in such action, either in form or substance, for the
furtherance of justice.[72]
The Bush Court’s application of MCL 600.2301 to a medical malpractice NOI was
rooted in the Legislature’s 2004 amendment of MCL 600.5856(c), the notice-tolling
statute, and does not apply to AOMs. Unlike NOIs, which give notice to defendants,
AOMs are meant to weed out frivolous cases before they are ever filed. Applying Bush
beyond the scope of the 2004 amendment of MCL 600.5856(c) and NOIs to AOMs
would be an unwarranted expansion of its focus on the notice-tolling statute, would free
the opinion from its statutory moorings, would frustrate the purpose of the AOM
requirement, and would create unnecessary conflict with existing caselaw, such as
Kirkaldy, which Bush did not overrule. We therefore decline to apply the rationale of
Bush beyond its limited statutory focus.
3. THE NEW VERSIONS OF MCR 2.112 AND MCR 2.118
ARE NOT APPLICABLE
Finally, we address plaintiff’s argument that he should now be permitted to amend
his AOMs in light of the 2010 amendments of MCR 2.112 and MCR 2.118. In addition
to mandating that a party challenge an allegedly defective AOM or affidavit of
meritorious defense within 63 days of service, MCR 2.112(L)(2)(b) now states, “An
affidavit of merit or meritorious defense may be amended in accordance with the terms
and conditions set forth in MCR 2.118 and MCL 600.2301.” In turn, MCR 2.118(D) now
states, in relevant part, “In a medical malpractice action, an amendment of an affidavit of
72
Freer v White, 91 Mich 74, 76; 51 NW 807 (1892).
25
merit or affidavit of meritorious defense relates back to the date of the original filing of
the affidavit.”73 The February 16, 2010, order adopting the amendments unequivocally
stated that they became effective May 1, 2010, long after the complaint and the AOMs in
this case were filed and, indeed, after the Court of Appeals resolved the case and
plaintiff’s application for leave to appeal was filed in this Court.74 Because this Court
explicitly ordered that the amended rules have prospective effect, we will not apply the
rules retroactively at plaintiff’s request. Moreover, as defendants argue, full retroactive
application of the rules is impossible at this late stage and would result in prejudice to
defendants; defendants cannot go back in time and comply with the new requirement that,
to challenge an AOM at all, they must do so within 63 days of service. Accordingly,
retroactive application of the rules would render defendants’ challenge to the AOMs
ineffective and afford them no opportunity to renew their arguments concerning their
deficiency or to oppose any motion plaintiff might bring for amendment at the court’s
discretion under MCR 2.118(A)(2). A newly adopted court rule will not be applied to
pending actions if a “party acts, or fails to act, in reliance on the prior rules and the
party’s action or inaction has consequences under the new rules that were not present
under the old rules.”75 In other words, amended court rules will not apply retroactively if
73
The substance of the amendments is not at issue here.
74
See Ligons, 486 Mich at 978 (CORRIGAN, J., dissenting in part).
75
Reitmeyer v Schultz Equip & Parts Co, Inc, 237 Mich App 332, 337; 602 NW2d 596
(1999) (quotation marks and citation omitted).
26
compliance with the newly prescribed time limits is impossible.76 We therefore decline
to apply the amended versions of MCR 2.112 and MCR 2.118 here.
D. DISMISSAL WITH PREJUDICE WAS REQUIRED
Plaintiff’s case was dismissed with prejudice because the two-year statutory
limitations period provided in MCL 600.5805(6) for his medical malpractice action
expired before his AOMs were deemed defective; therefore, no tolling was available to
him upon his filing the complaint under MCL 600.5856(a). The alleged malpractice by
defendants occurred on January 22, 2002. Accordingly, the two-year limitations period
expired on January 22, 2004. If the suit had been commenced before January 22, 2004,
the limitations period would have been tolled when the complaint was filed with the
accompanying AOMs. But no suit was filed within the limitations period, so no tolling
was available.
Instead, plaintiff filed suit within the saving period afforded him under MCL
600.5852, which permits the personal representative of the decedent’s estate to
commence an action “at any time within 2 years after letters of authority are issued
although the period of limitations has run” as long as commencement is “within 3 years
after the period of limitations has run.” Plaintiff was appointed personal representative
on February 22, 2005.77 He had until January 22, 2007—three years after the two-year
period of limitations expired on January 22, 2004—in which to file suit during the saving
76
See Solosth v Pere Marquette R Co, 255 Mich 62, 66; 237 NW 554 (1931).
77
Plaintiff is the second personal representative of Ligons’s estate.
27
period. He filed his complaint and AOMs on April 7, 2006. Although plaintiff filed suit
during the saving period, because the limitations period had expired, there was nothing
left to toll under MCL 600.5856(a) when he filed the complaint even though it was
accompanied by AOMs. For these reasons, the Court of Appeals correctly dismissed
plaintiff’s case with prejudice.
IV. CONCLUSION
Pursuant to the plain and controlling language of MCR 2.110(A), the applicable
version of MCR 2.118, MCL 600.5856, MCL 600.2912d, and this Court’s decisions in
Scarsella, Kirkaldy, and Waltz, we hold that a defective AOM may not be retroactively
amended and that the proper response to a defective AOM is dismissal. Although the
timely filing of a defective AOM tolls the limitations period until a court finds the AOM
defective, an AOM filed during a saving period after the limitations period has expired
tolls nothing, as the limitations period has run and the saving period may not be tolled. In
this case, because the limitations period had run before the complaint was filed, plaintiff
cannot amend his defective AOMs retroactively. Given that the saving period has
expired, plaintiff’s case had to be dismissed with prejudice. The judgment of the Court
of Appeals is affirmed.
Brian K. Zahra
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
28
STATE OF MICHIGAN
SUPREME COURT
DUJUAN LIGONS, Personal Representative
of the Estate of EDRIS LIGONS,
Plaintiff-Appellant,
v No. 139978
CRITTENTON HOSPITAL, a/k/a
CRITTENTON HOSPITAL MEDICAL
CENTER, DAVID BRUCE BAUER, M.D.,
and ROCHESTER EMERGENCY GROUP,
P.C.,
Defendants-Appellees.
CAVANAGH, J. (dissenting).
I respectfully dissent from the majority’s decision to affirm the Court of Appeals’
judgment dismissing plaintiff’s case with prejudice. In my view, MCL 600.2301 should
apply when the contents of an affidavit of merit (AOM) are deficient. Accordingly, I
would remand this case to the trial court for consideration under MCL 600.2301.
For the reasons stated in Justice MARILYN KELLY’s dissent in Roberts v Mecosta
Co Gen Hosp (After Remand), 470 Mich 679, 702-714; 684 NW2d 711 (2004) (MARILYN
KELLY, J., dissenting), I agree with Justice HATHAWAY’S conclusion in this case that a
heightened level of specificity in the contents of an AOM is not required. While Justice
MARILYN KELLY’s dissent examined MCL 600.2912b, addressing the contents of a
notice of intent to sue (NOI), I believe that her analysis is persuasive as it relates to the
AOM statute, MCL 600.2912d.
As the Roberts dissent explained, it is this Court’s duty to determine the
Legislature’s intent, which begins with an examination of a statute’s language. Roberts,
470 Mich at 705 (MARILYN KELLY, J., dissenting). Because the “Legislature knows what
phrasing to use when it intends to require extensive detail,” it is noteworthy that the
Legislature did not “explicitly mandate such specificity” in the AOM context. Id. at 709.
Specifically, like the NOI statute, MCL 600.2912d only requires a “statement” regarding
the alleged manner in which the breach of the standard of practice or care was the
proximate cause of the injury alleged in the notice.1 Thus, as Justice HATHAWAY notes,
the AOM statute does not expressly require a heightened level of specificity, as do other
statutes. See Roberts, 470 Mich at 708-709 (MARILYN KELLY, J., dissenting) (examining
other statutes that require “detailed,” “complete,” or “full” statements, or that require
statements made “with specificity”). Further, because the purpose of the AOM statute is
to deter frivolous medical malpractice claims by requiring a certification that a claim is
1
MCL 600.2912d(1) states in relevant part:
[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:
* * *
(d) The manner in which the breach of the standard of practice or
care was the proximate cause of the injury alleged in the notice.
2
valid, a general assertion of the items required by the AOM statute is sufficient to lend
professional credence to the claim’s legitimacy and thus is likely sufficient to meet the
statute’s apparent intent. See id. at 707-708. Therefore, I agree with Justice HATHAWAY
that a high level of specificity is not required in the AOM context.
Nevertheless, assuming arguendo that the AOM2 in this case was deficient, I
believe that MCL 600.23013 should apply to allow a cure of the alleged deficiency within
the AOM. To begin with, applying MCL 600.2301 would not conflict with MCL
600.2912d, when the latter is read as a whole. Indeed, as recognized by Justice
HATHAWAY, the AOM statute does not expressly provide a penalty for deficiencies
within the contents of an AOM. And, notably, the allowances of additional time to file
an AOM in MCL 600.2912d(2) and (3) do not explicitly preclude amending or
disregarding defects within the contents of an AOM.4 Instead, those provisions merely
2
Although plaintiff filed two AOMs in this case, because I believe that, at a minimum,
MCL 600.2301 would permit the alleged defects in Dr. George Sternbach’s AOM to be
cured, I will refer to AOM in the singular.
3
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.
4
MCL 600.2912d provides, in relevant part:
(2) Upon 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).
3
provide a plaintiff additional time in which to file the initial AOM and, thus, do not
address curing an arguably defective AOM. And while I continue to adhere to my
position in Kirkaldy v Rim, 478 Mich 581, 586-587; 734 NW2d 201 (2007) (CAVANAGH,
J., concurring), as Justice HATHAWAY suggests, allowing a defect within an AOM to be
cured under MCL 600.2301 would simply provide an alternative remedy to that of
Kirkaldy, in which the majority opined that the remedy for a successful challenge to a
deficient AOM is dismissal without prejudice, id. at 586 (majority opinion).
Accordingly, I believe that MCL 600.2301 should apply.5
Notably, the aim of MCL 600.2301 is to “‘“abolish technical errors in proceedings
and to have cases disposed of as nearly as possible in accordance with the substantial
rights of the parties.”’” Boodt v Borgess Med Ctr, 481 Mich 558, 569; 751 NW2d 44
(2008) (CAVANAGH, J., dissenting), quoting Gratiot Lumber & Coal Co v Lubinski, 309
Mich 662, 668-669; 16 NW2d 112 (1944). And, by its terms, MCL 600.2301 applies to
any “process” or “proceeding” before a court, allowing amendment, in either form or
substance, at “any time” before judgment is rendered. See, also, Bush v Shabahang, 484
Mich 156, 176; 772 NW2d 272 (2009).
(3) If the defendant in an action alleging medical malpractice fails to
allow access to medical records within the time period set forth in [MCL
600.2912b(6)], the affidavit required under subsection (1) may be filed
within 91 days after the filing of the complaint.
5
I disagree with the majority in this case that Kirkaldy provides the sole remedy for a
defective AOM, given my belief that MCL 600.2301 provides an alternative remedy to
the one posed by the majority in Kirkaldy, which, notably, did not cite or address the
merits of applying MCL 600.2301.
4
In this case, judgment had not yet been entered and, in my view, an AOM is part
and parcel of a medical-malpractice “proceeding,” given that it must be filed with the
medical-malpractice complaint. See Black’s Law Dictionary (9th ed) (defining
“proceeding” as including “[t]he regular and orderly progression of a lawsuit, including
all acts and events between the time of commencement and the entry of judgment”;
“[a]ny procedural means for seeking redress from a tribunal or agency”; and “[a]n act or
step that is part of a larger action”); see, also, Bush, 484 Mich at 176-177; Boodt, 481
Mich at 568 n 6 (CAVANAGH, J., dissenting).6 Further, because MCL 600.2301 permits
amendment “either in form or substance,” amending the substance of an AOM to more
clearly state the manner in which the breach of the standard of practice or care was the
proximate cause of the injury is proper. See Boodt, 481 Mich at 569 (CAVANAGH J.,
6
As I have recognized in the past, this Court has previously applied MCL 600.2301 or its
predecessors to allow amendment of documents that fall under the category of a process
or proceeding. See Boodt, 481 Mich 567-572 (CAVANAGH, J., dissenting); Bush, 484
Mich at 177 n 38. For this reason I disagree with the majority’s suggestion that this
Court has “long recognized” that an AOM cannot be amended under MCL 600.2301.
Indeed, the only case that the majority cites for this position is Freer v White, 91 Mich
74; 51 NW 807 (1892). Yet Freer did not cite any Michigan authority for its assertion
that amendments to “attachment affidavits” “have never been deemed admissible” under
a predecessor of MCL 600.2301. Id. at 76. More importantly, however, Freer did not
address the statute at issue in this case. Instead, Freer involved an “attachment affidavit”
in an attachment proceeding. Id. (emphasis added). See, generally, MCR 3.103
(explaining the process for seeking a writ of attachment). Thus, because Freer involved
an attachment proceeding, its statements regarding the applicability of the predecessor of
MCL 600.2301 it discussed, which, by its terms, only expressly involved attachment
affidavits, should not be read as applying to all affidavits generally, especially when this
Court has held that statutes such as the predecessors of MCL 600.2301 should be
“liberally construed.” See Beecher v Wayne Circuit Judges, 70 Mich 363, 367; 38 NW
322 (1888).
5
dissenting); Bush, 484 Mich at 177 (recognizing that MCL 600.2301 allows for
amendment of errors in form or substance).
Also, permitting amendment of a defective AOM would be “for the furtherance of
justice,” consistent with MCL 600.2301. As I explained in Boodt, justice is furthered by
applying MCL 600.2301 in a case in which a statute operates as a “terminal trap” for the
unwary when as here, defendants seek to avoid litigation of a potentially meritorious
claim on the basis of a technical defect in an otherwise sufficient7 and timely filed AOM.
See Boodt, 481 Mich at 569 (CAVANAGH, J., dissenting). Additionally, when plaintiff’s
AOM is read as a whole, the contents of the AOM do not evidence an utter lack of a
good-faith attempt to comply with the proximate-causation requirement of MCL
600.2912d(1)(d).8 Accordingly, even if plaintiff’s AOM were deficient, allowing the
alleged defect to be cured under MCL 600.2301 would be in the furtherance of justice.
See Bush, 484 Mich at 180-181.
Further, I do not believe that defendants’ substantial rights would be affected by
permitting MCL 600.2301 to cure the alleged defect in plaintiff’s AOM. See Bush, 484
Mich at 177-178. Unlike an NOI, which is aimed at providing notice of a claim to a
7
Notably, in this case, only the AOM’s statement regarding the manner in which the
breach of the standard of practice or care was the proximate cause of the injury is at issue.
8
Instead, the AOM in this case indicated that, in order to comply with the applicable
standard of care, defendants should have admitted the decedent to the hospital on
January 22, 2002, and obtained the appropriate consultations on that date and that, as a
direct and proximate cause of defendants’ acts and omissions, the decedent died.
Compare, Bush, 484 Mich at 178, 180 n 43, 182-183 (concluding that the defendant’s
one-page blanket denial provided an example of a failure to demonstrate a good-faith
attempt to comply with the content requirements of the NOI statute).
6
defendant and promoting settlement, see Roberts, 470 Mich at 707-708 (MARILYN
KELLY, J., dissenting), and Bush, 484 Mich at 174, the purpose of an AOM is to
demonstrate that a valid claim exists. Thus, because an AOM is not intended to provide
details in an effort to give notice of an impending claim and to promote settlement, a
stronger justification likely exists for allowing a minor defect in the contents of an AOM
to be cured. Stated another way, despite a technical defect in the AOM, a defendant
would certainly be apprised of the fact that a health-care professional who had reviewed
the plaintiff’s medical records believed that there was a valid claim, furthering the intent
of the AOM statute. And although a defendant is required to file an answer to a
plaintiff’s complaint within 21 days after an AOM is filed, a defendant’s affidavit of
meritorious defense is not dependent on the contents of a plaintiff’s AOM. See MCL
600.2912e; cf. MCL 600.2912b(7) (requiring a defendant to submit a written response to
a plaintiff’s NOI).9 Thus, I would not hastily conclude that a defendant’s substantial
rights would be affected by permitting any alleged defects to be cured under MCL
600.2301.10
9
In my view, any claim of prejudice to defendants’ rights rings hollow in this case. Like
the AOM statute, the NOI statute similarly requires a statement regarding proximate
causation. MCL 600.2912b(4)(e). In this case, defendants cannot legitimately claim that
they would be unfairly prejudiced by allowing the alleged defects in the AOM to be
cured, given that plaintiff’s statement regarding proximate causation in the supplemental
NOI was deemed sufficient by the Court of Appeals and defendants were served with
plaintiff’s supplemental NOI before plaintiff filed the complaint and AOM.
10
For the reasons stated in this dissent, I respectfully disagree with the majority’s
conclusion that permitting a cure would affect defendants’ substantial rights. See, also,
Bush, 484 Mich at 178. Further, I respectfully disagree with the majority’s suggestion
that permitting a trial court to cure a technical defect within an AOM is erroneous. In my
view, the majority’s opinion effectively renders MCL 600.2301 nugatory.
7
Accordingly, even assuming arguendo that the AOM was deficient in this case,
because I believe that the alleged defect can be cured pursuant to MCL 600.2301, I would
remand this case to the trial court for consideration under that statute.
Michael F. Cavanagh
Marilyn Kelly
8
STATE OF MICHIGAN
SUPREME COURT
DUJUAN LIGONS, Personal Representative
of the Estate of EDRIS LIGONS,
Plaintiff-Appellant,
v No. 139978
CRITTENTON HOSPITAL, a/k/a
CRITTENTON HOSPITAL MEDICAL
CENTER, DAVID BRUCE BAUER, M.D.,
and ROCHESTER EMERGENCY GROUP,
P.C.,
Defendants-Appellees.
HATHAWAY, J. (dissenting).
I respectfully dissent from the majority’s decision to dismiss plaintiff’s medical
malpractice action with prejudice. The majority holds that plaintiff’s affidavits of merit
(AOMs) were defective, that they cannot be amended pursuant to MCL 600.2301, and
that plaintiff’s complaint must therefore be dismissed with prejudice. The majority’s
conclusions are erroneous because plaintiff’s AOMs were not defective and even in cases
involving AOMs with content defects, MCL 600.2301 clearly provides relief. Moreover,
the plain language of the AOM statute, MCL 600.2912d(1), does not contemplate, let
alone require, that a plaintiff’s complaint be dismissed with prejudice for defects
contained in an AOM. Thus, the majority’s decision ignores the plain language of the
relevant statutes. The majority abandons the rule of law and reaches its result by
rewriting the applicable statutes. Accordingly, I dissent.
I. THE REQUIREMENTS OF THE AOM STATUTE
At issue is whether plaintiff’s AOMs met the requirements of MCL 600.2912d(1),
the AOM statute. To correctly resolve this issue, we must first examine the language of
the AOM statute and determine its correct interpretation. In examining this statute, we
follow the established rules of statutory construction. The purpose of statutory
construction is to discern and give effect to the intent of the Legislature.1 In doing so, we
first look to the actual language of the statute.2 If a statute is clear and unambiguous, it
must be enforced as written and no further judicial construction is allowed.3 Simply
stated, we must avoid a construction that would render any part of the statute nugatory,4
and similarly, we are “not free to add language to a statute or to interpret a statute on the
basis of this Court’s own sense of how the statute should have been written.”5 Further, a
1
Potter v McLeary, 484 Mich 397, 410; 774 NW2d 1 (2009), citing Sun Valley Foods Co
v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
2
Potter, 484 Mich at 410.
3
Sun Valley, 460 Mich at 236.
4
People v McGraw, 484 Mich 120, 126; 771 NW2d 655 (2009), citing Baker v Gen
Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980).
5
Kirkaldy v Rim, 478 Mich 581, 587; 734 NW2d 201 (2007) (CAVANAGH, J.,
concurring).
2
statute must be read as a whole,6 and while individual words and phrases are important,
the words and phrases should be read in the context of the entire legislative scheme.7
MCL 600.2912d, the AOM statute, provides in pertinent part:
(1) Subject to subsection (2), the 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:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard of
practice or care was breached by the health professional or health facility
receiving the notice.
(c) The actions that should have been taken or omitted by the health
professional or health facility in order to have complied with the applicable
standard of practice or care.
(d) The manner in which the breach of the standard of practice or
care was the proximate cause of the injury alleged in the notice.
The majority focuses on the requirements of subdivision (d), which states that the
AOM shall contain a statement of “[t]he manner in which the breach of the standard of
practice or care was the proximate cause of the injury alleged in the notice.” In this case,
6
See Sun Valley, 460 Mich at 237.
7
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008).
3
plaintiff submitted two separate AOMs.8 The majority holds that these AOMs were
deficient because they “failed to provide any statement of the manner in which the breach
of the standard of care was the proximate cause of the injury alleged.”9 This conclusion
is disingenuous because the plaintiff’s AOMs did contain statements regarding causation.
The statements were just not made to the level of exacting detail that the majority asserts
is required by the statute. However, the majority’s interpretation of what is required by
MCL 600.2912d, the AOM statute, is erroneous.
In analyzing the AOM statute, we must be mindful that the Michigan Legislature
has enacted many statutes requiring that a party detail certain facts or elements of a claim
with varying levels of heightened specificity. For example, the Legislature used the
phrase “with specificity” in MCL 333.17015(10), MCL 333.22231(4), and MCL
769.1a(8). The phrase “stating specifically” was used in MCL 38.416 and MCL
500.8133(3). The Legislature mandated in MCL 38.14, MCL 125.1510(1), MCL
408.1027(2)(b), MCL 462.319(1)(a), MCL 600.557b(2), and MCL 600.6461(2) that a
“detailed statement” be made; required a “full statement” in MCL 224.25, MCL
491.920(3), and MCL 500.424(2); required a “complete statement” in MCL 14.283(b)
8
Plaintiff’s AOM containing a statement from Dr. Fred Thomas provided in pertinent
part that “[i]t is my opinion that had the defendants admitted the patient to the hospital on
January 22, 2002, and obtained the appropriate consults on January 22, 2002, as outlined
in Dr. Sternbach’s affidavit that Edris Ligons would not have died.” Plaintiff’s AOM
containing a statement from Dr. George Sternbach provided in pertinent part that “[a]s a
direct and proximate cause of the imprudent acts and omission committed by the
individuals identified herein, Edris Ligons, died.”
9
Ante at 15 (emphasis added).
4
and MCL 462.2(2); and required a “full and complete statement” in MCL 247.172, MCL
324.51904, and MCL 390.758.
The Legislature chose not to incorporate any of these phrases heightening the level
of specificity in the AOM statute. If the Legislature had chosen to incorporate such
qualifying language in MCL 600.2912d(1), then the majority might have a basis for its
conclusion. However, MCL 600.2912d(1) is silent concerning the level of specificity
with which the information in an AOM must be conveyed. Nothing in the plain language
of this statute mandates the heightened level of specificity that the majority demands, and
this Court is not free to add words or phrases to a statute. Thus, the requirement that the
AOM “shall contain a statement of each of the following” simply means what it says.10
The statute requires that “a statement” must be made, not a “detailed statement,” “a
complete statement,” or a “full explanatory statement.”
Moreover, the majority distorts the word “manner” as used in MCL
600.2912d(1)(d).11 The majority opines that the word “manner” requires a detailed
statement of “how” the breach caused the injury:
We have often said that it is insufficient to simply state the result
when required to state the manner in which there was a breach: The answer
to “How was the standard of care breached?” is never “The standard of care
was breached.” Similarly, answering the question “How was the breach
10
MCL 600.2912d(1).
11
MCL 600.2912d(1)(d) states, “The manner in which the breach of the standard of
practice or care was the proximate cause of the injury alleged in the notice.” (Emphasis
added.)
5
the proximate cause of the injury?” requires more than “The breach
caused the injury.”[12]
However, this conclusion is inconsistent with how the word “manner” has been
interpreted in other statutes such as MCL 28.258(12)(b), MCL 52.202(1), and MCL
52.205. Our courts have consistently interpreted the word “manner” as used in relation to
those statutes as allowing for a single word description such as “homicide,” “suicide,” or
“accident.” In People v Williams, the Court of Appeals wrote:
Over the next two days Ashton’s condition continually deteriorated.
Ashton died on November 10, 2003. An autopsy revealed that the cause of
death was loss of consciousness caused by brain swelling. The Medical
Examiner determined that Ashton had been violently shaken, causing his
head to snap back and forth. The Medical Examiner concluded that the
manner of death was homicide.13
See also, Maiden v Rozwood, 461 Mich 109, 115; 597 NW2d 817 (1999) (“[T]he
‘manner of death was an accident.’”) (citation omitted); People v Bailey, 451 Mich 657,
664; 549 NW2d 325 (1996) (“‘The manner of death is homicide.’”) (citation omitted);
People v Schmitt, unpublished opinion per curiam of the Court of Appeals, issued July
31, 2007 (Docket No. 264176), p 2 (ZAHRA, P.J., dissenting) (“The medical examiner
determined the manner of Richard’s death to be a homicide . . . .”), rev’d 480 Mich 963
(2007); and People v Small, unpublished opinion per curiam of the Court of Appeals,
issued December 28, 1999 (Docket No. 205544), p 1 (“The assistant medical examiner
12
Ante at 15 (second emphasis added).
13
People v Williams, unpublished opinion per curiam of the Court of Appeals, issued
November 29, 2005 (Docket No. 256123), p 2.
6
testified that the cause of death was multiple gunshot wounds and that manner of death
was homicide.”).
Thus the use of the word “manner” in the AOM statute does not mandate a
detailed description of how the breach caused the injury; rather the manner in which the
breach was the proximate cause of the injury can be set forth in a similarly succinct
description such as “the malpractice caused the death” or “the breaches of the standard of
care caused the death,” or “the death was caused by the breaches of the standard of care.”
Thus, all that MCL 600.2912d(1)(d) requires is a statement that the breach of the standard
of care caused the result. To require the parties to provide further description creates a
requirement not found in the language of the statute.
Moreover, the majority’s ruling transforms an AOM into something that it is not.
The AOM statute is one part of a larger statutory scheme for malpractice claims, and it
must be read in the context of that larger legislative scheme. As set forth by the clear
language of MCL 600.2912d(1), an AOM is designed only to act as certification that the
claim is supported by the opinion of a qualified expert. The statute states that the
plaintiff “shall file . . . an affidavit of merit signed by a health professional who the
plaintiff’s attorney reasonably believes meets the requirements for an expert witness . . . .
The affidavit of merit shall certify that the health professional has reviewed the notice [of
intent] . . . concerning the allegations contained in the notice . . . .”14 Thus, an AOM is
intended to function as a certification that the allegations contained within the notice of
14
MCL 600.2912d(1) (emphasis added).
7
intent (NOI) are meritorious. An AOM is filed with the complaint and is not the notice
pleading. The NOI is the notice pleading. The AOM serves as certification that the
allegations of the claim are meritorious, and its only role is to deter the filing of
unsupported claims. By failing to read the AOM statute in its entirety and in the context
of the malpractice statutory scheme, the majority simply misconstrues the statute.
The majority compounds its error by focusing solely on the statements made in the
AOM, rather than reading the AOM in concert with the NOI, as contemplated by the
AOM statute. The AOM statute requires that “[t]he 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 . . . .”15
As evidenced by this plain language, an AOM is not a standalone document. Rather, it is
to be read in concert with the NOI. The statute requires that the expert review the NOI
and certify that he or she supports allegations contained therein, and while the statute
requires the expert to make a statement on proximate causation, it does not require that
the expert repeat the contents of the NOI in the AOM.
II. THE SUFFICIENCY OF PLAINTIFF’S AFFIDAVITS OF MERIT
In this case, the NOI set forth in detail the nature of the claim and how the
plaintiff’s decedent, Edris Ligons, died. From the pleadings, plaintiff’s allegations
appear to be relatively straightforward and uncomplicated. The NOI and AOMs alleged
15
Id. (emphasis added).
8
that professional negligence occurred during a visit to defendant Crittenton Hospital’s
emergency room, where Ligons was seen by defendant David Bruce Bauer, M.D.
Plaintiff claimed that Ligons had suffered a perforation of her colon during a recently
performed colonoscopy and that she developed sepsis as a result of the perforation.
Ligons went to the emergency room for follow-up treatment, and plaintiff claimed that
Dr. Bauer failed to admit her to the hospital for the proper diagnostic testing and
treatment. Plaintiff further claimed that this improper treatment allowed the sepsis to
become overwhelming, leading to multiple organ failure, causing Ligons’s death. The
NOI set forth the factual background of plaintiff’s claim:
Edris Ligons was a 54-year-old woman, with a history of colon
polyps, with one atypical polyp found on a previous colonoscopy. She
came to Crittenton Hospital for an out-patient follow-up colonoscopy on
January 14, 2002. Dr. Tayeb noted during the procedure that the colon was
very tortuous and pressure had to be applied to reach the cecum. The
clinical diagnosis was diverticulosis and hemorrhoids.
On January 22, 2002 Mrs. Ligons presented to the Emergency
Department at Crittenton with a four-day history of vomiting, diarrhea,
chills, and fever. She had a fever of 102.4. She had abdominal tenderness
on examination. She had a [white blood cell count] of 15,400. An
abdominal x-ray showed an abnormal gas pattern with mildly dilated small
bowel loops, and paucity of gas or bowel content in the colon. The report
indicated that this could reflect early or partial bowel obstruction. The
radiologist specifically recommended progress views. She was treated for
gastroenteritis and dehydration. She was given antibiotics and fluids. She
was discharged within six hours.
She went to Dr. Tayeb’s office on the 23rd due to severe pain. She
was immediately sent to the Emergency Department. Examination revealed
changes consistent with peritonitis because of a perforated colon. She
developed sepsis. Exploratory laparatomy revealed an extensive pelvic
abscess, and surgical resection was not possible. Despite extensive
9
medication, the sepsis that developed due to the perforated colon led to
multiple organ failure and death on January 29, 2002.
Plaintiff’s supplemental NOI further stated:
As a direct and proximate result of the negligence and malpractice
alleged above Edris Ligons experienced conscious pain and suffering and
ultimately died due to the negligence. Specifically, had Dr. Bauer admitted
the patient to the hospital on January 22, 2002 and had appropriate consults
been obtained including surgery and [gastrointestinal] and had progress X-
rays been obtained the patients [sic] peritonitis would have been diagnosed
much earlier. The per[forated] colon would have been detected and surgery
would have been performed much earlier. This would have avoided the
overwhelming sepsis that led to the multi organ system failure and
ultimately death.
The AOM signed by Dr. Fred Thomas certified that he had reviewed the NOI and
all the medical records concerning the allegations contained in the notice and concluded,
“It is my opinion that had the defendants admitted the patient to the hospital on
January 22, 2002, and obtained the appropriate consults on January 22, 2002, as outlined
in Dr. Sternbach’s affidavit that Edris Ligons would not have died.” The AOM signed by
Dr. George Sternbach similarly certified his review and concluded, “As a direct and
proximate cause of the imprudent acts and omission committed by the individuals
identified herein, Edris Ligons, died.”
While I do not opine on whether plaintiff would ultimately prevail on the merits, it
is pure folly to suggest that these statements do not meet the requirements of MCL
600.2912d(1)(d). To reach such an erroneous conclusion, the majority effectively ignores
the statements that the “per[forated] colon would have been detected and surgery would
have been performed much earlier” and “[t]his would have avoided the overwhelming
sepsis that led to the multi organ system failure and ultimately death.” The majority
10
further ignores the Dr. Thomas’s certification that he had reviewed that statement and the
supporting medical records and ignores his opinion that “had the defendants admitted the
patient to the hospital on January 22, 2002, and obtained the appropriate consults on
January 22, 2002, as outlined in Dr. Sternbach’s affidavit that Edris Ligons would not
have died.”
The majority’s conclusion that the contents of the NOI must be repeated in the
AOM is at odds with the plain language of the statute. Plaintiff’s AOMs met the
requirements of MCL 600.2912d(1)(d).16 The AOMs, when read in concert with the
NOI, set forth a “statement” regarding the “manner in which the breach of the standard of
practice or care was the proximate cause of the injury alleged in the notice.” Nothing
more is required by the statute. Thus, plaintiff’s AOMs were not defective.
III. DISMISSAL OF A CASE INVOLVING AN AOM WITH CONTENT DEFECTS IS
NOT REQUIRED BY KIRKALDY
The majority further errs by holding that if an AOM contains any defect, the only
possible remedy is dismissal under Kirkaldy v Rim.17 In so opining, the majority expands
the ruling of Kirkaldy well beyond its facts and legal conclusion. In Kirkaldy, the
plaintiff’s AOM was found to be defective because it was not signed by an expert who
met the requirements of the expert-witness statute, MCL 600.2169. The plaintiff in
Kirkaldy was not seeking relief from a defect in content. Instead, the plaintiff sought the
16
This is not to suggest or imply that parties are not free to engage in repetition or that
being repetitive renders an AOM defective. Parties may be repetitive; however, it is not
required by the statute.
17
Kirklady, 478 Mich 581.
11
ability to replace an AOM, signed by an unqualified expert, with an entirely new AOM
signed by a qualified expert. Thus, Kirkaldy addressed the ability to substitute the
original AOM for one signed by an entirely different expert witness. Nothing in Kirkaldy
addressed an AOM containing purported defects in content. Rather, the defect at issue in
Kirkaldy was that the expert was not qualified to support the claim. Significantly, the
plaintiff in Kirkaldy filed a second complaint accompanied by a new AOM signed by a
qualified expert. The plaintiff requested that the original case be dismissed without
prejudice so that she could pursue the second complaint. This Court simply granted one
of the avenues of relief requested by the plaintiff when it dismissed the case without
prejudice.
Kirkaldy decided the issue of whether filing the original complaint tolled the
period of limitations under MCL 600.5856, and this Court held that even an AOM signed
by an unqualified expert tolls the period of limitations. Kirkaldy did not address whether
alternative remedies short of dismissal, such as amendment of an AOM, were available
under MCL 600.2301. Thus, it is erroneous to state that dismissal is the only remedy for
an AOM with content defects because this Court did not address that issue in Kirkaldy.
IV. DISMISSAL OF AN AOM WITH CONTENT DEFECTS IS CONTRARY
TO THE AOM STATUTE
The proper starting point for identifying the required penalties and available
remedies for AOMs with content defects is the language of the AOM statute itself. While
MCL 600.2912d(1) mandates that a plaintiff shall not commence an action for medical
malpractice without timely filing an AOM, nothing in the plain language of this statute
12
requires or compels dismissal of the case for defects in the AOM. Despite the majority’s
contrary conclusion, the AOM statute makes no reference whatsoever to a mandatory
dismissal penalty in the event of a defect. Instead, the statute is silent regarding the
consequences of filing an AOM that contains content defects. Thus, we must determine
whether mandatory dismissal with prejudice was the intent of the Legislature when it
enacted MCL 600.2912d.
The legislative history of the AOM statute reveals that the Legislature did not
intend for a defect in an AOM to be grounds for dismissal with prejudice. The clearest
indicator of this intent is the Legislature’s complete rejection of a “mandatory dismissal
with prejudice” clause contained in the original draft of the legislation. The AOM statute
was originally introduced as part of Senate Bill No. 270 on January 28, 1993. AOMs
(referred to as “certificate[s]” in SB 270 as introduced) were addressed in proposed
§ 2912d. Proposed § 2912d contained a mandatory dismissal penalty. The bill as
introduced linked the NOI and the AOM together. It also provided for dismissal of
claims without the benefit of tolling afforded in MCL 600.5856, which in essence would
have resulted in a dismissal with prejudice. Section 2912d as introduced stated:
(1) A person shall not commence an action alleging medical
malpractice unless the complaint is accompanied by the certificate signed
by the person or, if the person is represented by an attorney, by the attorney
reflecting that the person has complied with section 2912f [concerning
NOIs]. If the complaint is not accompanied by the certificate required
under this subsection, the complaint does not toll the statute of limitations
as provided in section 5856(1).
13
(2) Except as otherwise provided in this subsection, in an action
alleging medical malpractice, the court shall dismiss a claim not included
in the notice required under section 2912f. [Emphasis added; formatting
altered from strikethrough/insert format to show language as proposed.]
Significantly, while AOMs and NOIs remained linked in the version of the bill
actually adopted, the penalty provisions did not survive. There simply were not sufficient
votes in the Legislature to enact a statute with such harsh penalties. This unequivocally
demonstrates that mandatory dismissal was not the will of the Legislature. Michigan law
makes clear that “[w]here the Legislature has considered certain language and rejected it
in favor of other language, the resulting statutory language should not be held to
explicitly authorize what the Legislature explicitly rejected.”18 Because the Legislature
specifically omitted proposed dismissal language from the enrolled bill, it is unreasonable
to conclude that the Legislature intended for courts to reinsert dismissal as the only
permissible remedy. The majority’s interpretation of the phrase “shall contain a
statement” as meaning “shall dismiss the case if there is a possible defect no matter how
minor” is misguided.19
18
In re MCI Telecom Complaint, 460 Mich 396, 415; 596 NW2d 164 (1999); see also
Univ Med Affiliates, PC v Wayne Co Executive, 142 Mich App 135, 140; 369 NW2d 277
(1985) (holding that the legislative history of a statute may be considered, and if it can be
shown that certain language was affirmatively rejected, the court should not give the
statute a construction that the Legislature plainly refused to give it); Nation v WDE
Electric Co, 454 Mich 489, 492-493, 495; 563 NW2d 233 (1997); Miller v State Farm
Mut Auto Ins Co, 410 Mich 538, 566; 302 NW2d 537 (1981); and People v Adamowski,
340 Mich 422, 429; 65 NW2d 753 (1954).
19
It is ironic that the Legislature refused to enact the most severe penalty, dismissal with
prejudice, for a complete failure to file an AOM, yet here, the majority adopts this severe
penalty for purported minor content defects.
14
V. CONTENT DEFECTS IN AN AOM MAY BE CORRECTED
The AOMs in this case were not defective. However, even in cases involving
AOMs with content defects, a party who files a defective AOM is entitled to seek relief.
The first question is whether a plaintiff is entitled to relief under the former version of
MCR 2.118. The majority claims that a plaintiff whose case was pending while the
former version of MCR 2.118 was in effect20 is not entitled to relief under the former rule
because an AOM is not a pleading. To reach this conclusion the majority disavows the
holding in Barnett v Hidalgo, 478 Mich 151, 161; 732 NW2d 472 (2007), that an AOM is
part of a pleading and, therefore, admissible as substantive evidence at trial because it
constitutes an admission by a party opponent. However, now the majority claims that
because Barnett held that an AOM is only “part of the pleadings,”21 an AOM is not a
“pleading” subject to amendment under MCR 2.118. This distinction is dubious at best,
as nothing in former MCR 2.118 stated or suggested that a pleading can be amended but
a part of it cannot.
20
On February 16, 2010, this Court amended the court rules to make it clear that AOMs
may be amended. Specifically, MCR 2.112(L)(2)(b) as amended now provides in
pertinent part that “[a]n affidavit of merit or meritorious defense may be amended in
accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301.”
The majority’s decision to preclude use of the amended rules conflicts with the general
rule that “‘the norm is to apply the newly adopted court rules to pending actions unless
there is reason to continue applying the old rules.’” Reitmeyer v Schultz Equip & Parts
Co, Inc, 237 Mich App 332, 337; 602 NW2d 596 (1999), quoting Davis v O’Brien, 152
Mich App 495, 500; 393 NW2d 914 (1986); see also People v Jackson, 465 Mich 390;
633 NW2d 825 (2001); 1 Longhofer, Michigan Court Rules Practice (5th ed), §§ 1102.1
and 1102.2, pp 3-4.
21
Barnett, 48 Mich at 161.
15
Regardless of whether relief is available under the former court rule, the majority
completely disregards MCL 600.2301. Once again, this Court must turn to the actual
language of the statute. MCL 600.2301 contains two clear and unambiguous provisions:
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.
The plain language of this statute imposes a duty that cannot be ignored on all
courts of this state. It requires that “[t]he 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 is not a discretionary provision. It is a legislative mandate
that this Court must follow. Unless substantial rights are affected, the court shall
disregard any error or defect at every stage of the action or proceeding. This provision
applies to all actions or proceedings. Thus, even if we were to accept the majority’s
erroneous conclusion that an AOM is not a pleading, an AOM is nevertheless part of the
“action” or “proceeding.” Clearly, the failure to repeat statements already made cannot
be characterized as affecting a substantial right. According to the plain language of the
statute, this Court must disregard technical defects, such as the ones the majority claims
are in plaintiff’s AOMs. By failing to do so, the majority ignores a clear and direct
mandate imposed on this Court by the Legislature.
Moreover, even in instances in which an AOM contains more substantial defects
or substantial rights might be affected, trial courts still have discretion under MCL
16
600.2301 to afford relief by way of amendment when justice so requires. MCL 600.2301
states that “[t]he 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 . . . .” MCL 600.2301
clearly provides for amendment of more than just pleadings. It allows for amendments of
“any process, pleading or proceeding.” An AOM is without question part of the process
or proceeding. Thus, an AOM is a document that courts have the power to amend.
The majority claims it can disregard the plain language of MCL 600.2301 by
asserting that Freer v White, 91 Mich 74, 76; 51 NW 807 (1892), represents the long-
established law in Michigan that amendment of an affidavit is prohibited. However, the
majority’s reliance on Freer (discussing “attachment” affidavits used in debtor-creditor
disputes in the 1800s) is misguided.22 In Emerson v Detroit Steel & Spring Co, 100 Mich
127, 132; 58 NW 659 (1894), this Court limited the holding in Freer to its facts and
recognized that Freer had not overruled Barber v Smith, 41 Mich 138; 1 NW 992 (1879),
which had previously allowed for amendments to attachment affidavits.23 Accordingly,
22
Freer has not been cited as authority by any court in this state since 1907.
23
Barber favored curing defects in an affidavit by amendment and held that “[t]his power
to cure errors and irregularities by amendment is a useful one, if wisely exercised, and
when no provision to the contrary is made it applies as fully to attachment suits as to
others.” Barber, 41 Mich at 144. The defect at issue in Barber “was not such a defect as
to necessarily and at once to destroy the process and put an end to the proceeding, but a
defect remediable under the power of the court to correct errors in its proceedings during
their progress.” Id. at 145. Accordingly, Barber concluded that “in case the proceeding
while open, and at a stage permitting correction by amendment, should be brought into
question collaterally, it would not be competent to reject it as void on account of the
17
Freer does not, as the majority claims, support its decision to ignore the plain language of
MCL 600.2301.
VI. WHEN COURTS SHOULD ALLOW AMENDMENT OF AN AOM
Next we must determine under what circumstances a court should allow
amendment of an AOM with content defects that affect the substantial rights of the
parties. While allowing an amendment is a discretionary matter, a court should view a
party’s request to amend in light of the statutory directive that amendments should be in
“the furtherance of justice, on such terms as are just . . . .”24 If failing to allow
amendment would result in the dismissal of a plaintiff’s case with prejudice, as the
majority holds in this case, the result would not be in the furtherance of justice. Such a
result slams the courthouse doors in the plaintiff’s face, leaving that plaintiff without a
forum in which to pursue a claim that an expert has certified as meritorious.
Citizens of this state are entitled to a forum to resolve claims on their merits.
Furtherance of justice cannot be achieved without providing citizens access to justice.
Access to justice is a cornerstone of our system of jurisprudence, and without it,
confidence in the judiciary is lost. Allowing for amendment of an AOM to correct
defects in content is in the furtherance of justice. Such relief permits a plaintiff to pursue
defect.” Id.; see also Walden v Crego’s Estate, 288 Mich 564; 285 NW 457 (1939)
(holding that statutorily required attachment affidavits that contain defects in content may
be corrected by amendment).
24
MCL 600.2301.
18
his or her claim and have it decided on its merits rather than on a hypertechnical reading
of an AOM or a misguided reading of the AOM statute.
Unfortunately, instead of following the rule of law, the majority denies the
plaintiff in this case access to justice by rewriting the language of the AOM statute in
order to come to its result.
VII. CONCLUSION
I respectfully dissent from the majority’s decision to dismiss this medical
malpractice action with prejudice. The majority’s conclusions are erroneous because
plaintiff’s AOMs were not defective and even in cases involving AOMs with content
defects, MCL 691.2301 clearly provides relief. Moreover, the plain language of the
AOM statute does not contemplate, let alone require, that a plaintiff’s complaint be
dismissed with prejudice for defects contained in an affidavit. The majority’s decision
ignores the plain language of the relevant statutes. The majority abandons the rule of law
and reaches its result by rewriting the applicable statutes.
Diane M. Hathaway
19