By Kelly Caplan
BridgeTower Media Newswires
A divided Michigan Supreme Court has denied leave to appeal in a medical malpractice matter where the appellate court ruled that a second affidavit of merit constituted an amendment of the first affidavit of merit.
In Legion-London v. The Surgical Institute of Michigan, the trial court granted the defendant’s motion for summary disposition because the author of the affidavit of merit filed with the plaintiff’s complaint was a neurosurgeon, not an orthopedic surgeon like the defendant.
The trial court also denied the plaintiff’s motion to amend her affidavit of merit to correctly identify the defendant’s specialty as orthopedics and to include the signature of an expert in orthopedics. The trial court said the new affidavit could not be considered an amendment because a different expert signed the affidavit. The case could not be refiled since the statute of limitations had run.
But in a 2-1 published decision, the Court of Appeals reversed and remanded the case to the Oakland Circuit to accept the amendment for filing and for further proceedings.
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Background
Charlette Legion-London brought a medical malpractice suit against two surgeons — Dr. Aria Sabit, a neurosurgeon listed on the operative report as the “Surgeon,” and Dr. Crawford, identified on the report as “Assistant.”
Legion-London filed her complaint with an AOM signed by a neurosurgeon, saying the relevant standard of care was that of a neurosurgeon and that both doctors had violated it.
Sabit defaulted so the case proceeded against Crawford and his practice only.
Crawford filed a motion for summary disposition, claiming the AOM was deficient because the standard of care applicable to him was that of an orthopedist, not a neurosurgeon.
Legion-London raised multiple arguments about the AOM’s suitability, and then moved to file an amended AOM that referred to the standard of care for an orthopedist and was signed by an orthopedist.
The Oakland County court granted summary disposition for Crawford and his practice. It then denied Legion-London’s motion to amend, holding that “the revised affidavit did not constitute an amendment because the affiant was not the same doctor as the one who had signed the initial AOM.”
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Appeals court
Court of Appeals Judges Douglas B. Shapiro and Mark J. Cavanagh reversed the ruling, saying the trial court on remand was to accept Legion-London’s amendment for filing and for further proceedings.
“[W]e hold that under MCR 2.112(L)(2)(b), an AOM may be amended by submitting an affidavit signed by a different expert when there has been a challenge to the ‘qualifications of the signer,’” Shapiro wrote for the court. “Such an amendment relates back to the original filing. MCR 2.118(D). The trial court abused its discretion by denying plaintiff’s motion to amend because that decision was based on an erroneous interpretation of the court rules.”
But in a lengthy dissent, Judge Thomas C. Cameron disagreed with the majority’s “expansive interpretation of MCR 2.112(L)(2)(b) and its conclusion that the substitute AOM constitutes an amendment.”
He also found fault with the majority’s reading of MCL 600.2301.
“Even if I were to accept the majority’s conclusion that MCL 600.2301 applies to the facts at issue in this case, it would not be dispositive given that plaintiff must comply with both MCR 2.118 and MCL 600.2301 in order to be entitled to relief under MCR 2.112(L)(2)(b),” he explained. “Because I conclude that the substitution of affiants based on these facts cannot be considered a ‘minor revision or addition’ of wording so as to constitute an amendment, I would conclude that MCL 600.2301 cannot be applied to save plaintiff’s claim.”
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Dissenting justices
Justice Brian K. Zahra said the appellate majority’s ruling was incorrect, noting that its “interpretation of the 2010 amendments of the Michigan Court Rules poses significant constitutional questions in regard to this Court’s authority to promulgate ‘substantive’ policy under the guise of its ‘procedural’ rulemaking authority.”
The statute governing medical malpractice actions — MCL 600.2912 d(1) — reads in relevant part, that “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].”
And MCL 600.2169 91)(a) requires that “if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.”
Zahra noted the trial court rejected Legion-London’s attempt to amend the first AOM because the second affidavit “was an entirely different affidavit that was signed by a different surgeon in a different area of specialty. This, the trial court concluded, constituted much more than an amendment.”
The justice said his view is that only an affiant can amend the AOM.
“Common sense dictates that an amendment of an affiant’s affidavit executed by a different affiant necessarily is a different affidavit, not a change to the old one,” he said. “Because the new affidavit is made by a new affiant, it consists of an entirely new ‘declaration,’ even if the second affiant repeats some or all of what the first affiant declared.”
Most importantly, according to Zahra, was that by denying leave to appeal, the high court “not only lets stand a highly questionable, divided, and published Court of Appeals opinion but also effectively overrules Kirkaldy v Rim.”
The Kirkaldy court ruled that “‘the proper remedy’ when a court finds an AOM to be defective ‘is dismissal without prejudice,’ leaving the plaintiff with ‘whatever time remains in the period of limitations within which to file a complaint accompanied by a conforming affidavit of merit.’”
Zahra said that, despite assurances from the then-chief justice that the 2010 amendments of MCR 2.112 and MCR 2.118 did not overrule Kirkaldy, the dissenting justices in that case were correct to suspect otherwise.
“Letting the Court of Appeals majority opinion stand in this case is contrary to the assurances of Chief Justice Kelly ‘that the amended court rules are merely “permissive in nature” and therefore do not run afoul of Kirkaldy, which would only apply when “a court denies a request to amend a defective affidavit of merit …,’” Zahra wrote. “Under the Court of Appeals’ decision, it is difficult to envision a change to an AOM that would not be deemed a permissible ‘amendment.’ Thus, there is little to no room left for Kirkaldy to govern.”
Justice David F. Viviano joined Zahra’s dissent.
