JORHA MOURADIAN V DARRYL T GOLDBERG
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STATE OF MICHIGAN
COURT OF APPEALS
JORHA MOURADIAN AND DIANE
MOURADIAN,
FOR PUBLICATION
May 20, 2003
9:05 a.m.
Plaintiffs-Appellants,
v
DARRYL T. GOLDBERG, M.D., and DARRYL
T. GOLDBERG, M.D., P.C.,
No. 239954
Oakland Circuit Court
LC No. 00-027394-NH
Defendants-Appellees,
and
WILLIAM BEAUMONT HOSPITAL, ANDREA
MASTRACCI, C.R.N.A., and WILLIAM
WALKER, M.D.,
Updated Copy
June 20, 2003
Defendants.
Before: Fitzgerald, P.J., and Wilder and Cooper, JJ.
WILDER, J.
In this medical-malpractice action, plaintiffs Jorha and Diane Mouradian appeal as of
right the trial court's order granting summary disposition in favor of defendants Darryl T.
Goldberg, M.D., and Darryl T. Goldberg, M.D., P.C., (hereafter defendants) pursuant to MCR
2.116(C)(7). We affirm.
I. Facts and Proceedings
Dr. Goldberg performed an extracapsular cataract extraction on Jorha Mouradian's right
eye on May 13, 1998.1 Plaintiffs' complaint alleges that Dr. Goldberg committed medical
malpractice during this procedure by implanting the wrong size lens, requiring a second surgery
1
Plaintiff Diane Mouradian's claim is for loss of consortium.
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to be performed on June 10, 1998. Plaintiffs' complaint also contends that during the second
surgery, defendants Goldberg, William Walker (an anesthesiologist), and Andrea Mastracci (a
certified nurse anesthetist) administered the anesthesia inappropriately.2
On May 9, 2000, plaintiffs served defendants with their notice of intent to sue, as
required by MCL 600.2912b. On November 13, 2000, plaintiffs filed their complaint, but did
not file an affidavit of merit with the complaint, as required by MCL 600.2912d(1).
Additionally, plaintiffs did not request or receive an extension of time from the court for filing
the required affidavit, as permitted by MCL 600.2912d(2).3 On December 8, 2000, plaintiffs
filed an affidavit of merit signed by Dr. Howard Siegel. Although plaintiffs assert that Dr. Siegel
was unavailable to sign the affidavit of merit when plaintiffs filed their complaint and that they
were left with no alternative but to file the affidavit at a later time, plaintiffs do not explain why
no extension for filing the affidavit was sought at that time. Defendants were served with the
summons and complaint and the affidavit of merit in January 2001.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10).
Defendants first argued that plaintiffs' claims against them regarding the May 1998 surgery were
barred by the statute of limitations, noting that because plaintiffs did not file the affidavit with
the complaint, in accordance with Scarsella v Pollak (Scarsella II), 461 Mich 547; 607 NW2d
711 (2000), affirming Scarsella v Pollak (Scarsella I), 232 Mich App 61; 591 NW2d 257 (1998),
the November 13, 2000, filing of the complaint did not toll the period of limitations, which
expired on December 8, 2000. Defendants also contended that Dr. Goldberg did not administer
the anesthetic to plaintiff Jorha Mouradian during the June 1998 surgery and that this point is
undisputed, but defendants failed to present an affidavit or other evidentiary support for this
assertion.
Plaintiffs failed to respond to defendants' contention that Dr. Goldberg did not administer
the anesthetic. They conceded that the affidavit of merit was not filed at the time the complaint
was filed. Plaintiffs contended, however, that MCL 600.2912d(1) did not require dismissal of
the complaint despite their failure to file the affidavit with the complaint. Plaintiffs also argued
that since defendants received the affidavit at the same time they were served with the complaint,
2
It appears from the lower-court record that defendant Walker was not served with the summons
and complaint in this action. Although there is no order in the file dismissing the claim against
him, the action is deemed dismissed upon expiration of the unserved summons. MCR
2.102(E)(1). Plaintiffs' claims against defendants Mastracci and William Beaumont Hospital
were dismissed with prejudice on April 25, 2001, following a stipulation of the parties.
3
MCL 600.2912d(2) states:
Extension for filing; good cause requirement. 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).
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defendants suffered no prejudice as a result of plaintiffs' failure to file the affidavit with the
complaint, and that accordingly, pursuant to VandenBerg v VandenBerg (VandenBerg I), 231
Mich App 497, 502-503; 586 NW2d 570 (1998), dismissal was not required. Plaintiffs further
argued that Scarsella II was distinguishable because plaintiffs served defendants with the
affidavit of merit and the complaint simultaneously, whereas in Scarsella II the defendants were
not served with the affidavit of merit until sometime after they were served with the summons
and complaint. Plaintiffs requested in the alternative that the trial court grant them, pursuant to
MCL 600.2912d(2), a retroactive twenty-eight-day extension to file their affidavit of merit, such
that the affidavit of merit would relate back to the filing of the complaint.
The trial court granted summary disposition in favor of defendants based on MCR
2.116(C)(7), finding that Scarsella II required dismissal of the action. Specifically, the trial court
held that the filing of plaintiffs' complaint alone failed to toll the period of limitations and that
plaintiffs' claims were time-barred because the affidavit of merit was not filed before the period
of limitations expired. The trial court rejected plaintiffs' request for a retroactive twenty-eightday extension to file the affidavit of merit, finding pursuant to Holmes v Michigan Capital
Medical Center, 242 Mich App 703, 708; 620 NW2d 319 (2000), that permitting plaintiffs' laterfiled affidavit of merit to relate back to the date of the complaint would effectively negate the
statutory affidavit requirement. Subsequently, plaintiffs moved for reconsideration of the trial
court's decision, which was denied. This appeal followed.
II. Standard of Review
This Court reviews de novo a trial court's decision to grant or deny summary disposition.
Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). Summary
disposition is appropriate under MCR 2.116(C)(7) when a claim is time-barred. McKiney v
Clayman, 237 Mich App 198, 201; 602 NW2d 612 (1999). In reviewing a request for summary
disposition pursuant to MCR 2.116(C)(7), we consider all the documentary evidence provided by
the parties and accept as true all of plaintiffs' well-pleaded allegations, unless contradicted by
documentary evidence. Id. at 202; Novak v Nationwide Mut Ins Co, 235 Mich App 675, 681682; 599 NW2d 546 (1999); Holmes, supra at 703.
III. Analysis
We agree that the trial court properly granted summary disposition in this case, although
we disagree with part of its analysis. Plaintiffs alleged that Dr. Goldberg committed malpractice
on both May 13, 1998, and June 10, 1998. Under the tolling provisions of MCL 600.5856(d),
the period of limitations for the May 13, 1998, surgery expired on November 13, 2000. The
period of limitations for the second surgery expired on December 11, 2000. As the trial court
correctly found, plaintiffs' complaint, filed without the affidavit of merit required by MCL
600.2912d, did not toll the limitations period because "'in a medical malpractice case, the mere
tendering of a complaint without the required affidavit of merit is insufficient to commence the
lawsuit.'" Scarsella II, supra at 549, quoting Scarsella I, supra at 64. Because the limitations
period concerning the first surgery expired before the affidavit of merit was filed, plaintiffs'
claims relating to the May 13, 1998, surgery are time-barred. Holmes, supra at 709.
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Plaintiffs claim that VandenBerg I rather than Scarsella II controls the disposition of this
case. We disagree. First, we note that in VandenBerg v VandenBerg (VandenBerg II), 253 Mich
App 658, 662; 660 NW2d 341 (2002), this Court relied on our holding in Scarsella I that "'the
mere tendering of a complaint without the required affidavit of merit is insufficient to commence
[a medical-malpractice] lawsuit,'" and found that although the complaint may have already been
filed, a medical-malpractice action is not timely commenced where the filing of an affidavit of
merit occurs beyond the period set by the applicable statute of limitations. VandenBerg II, supra
at 661-662, quoting Scarsella I, supra at 64. Thus, in the instant case the fact that defendants
were served simultaneously with the affidavit of merit and the summons and complaint is
irrelevant because the suit was not commenced before the expiration of the period of limitations.
Accordingly, we affirm the trial court's decision with regard to the first alleged act of
malpractice.
Plaintiffs did, however, file the affidavit of merit before the expiration of the period of
limitations for the second alleged act of malpractice.4 The trial court erroneously held that
plaintiffs' claims were time-barred because the period of limitations expired on December 8,
2000. In fact, the period of limitations for claims related to the second surgery expired on
December 11, 2000. Thus, the filing of plaintiffs' affidavit on December 8, 2000, appears, on its
face, to have "completed" the filing of the complaint before the period of limitations expired.
Scarsella II, supra at 550.
Nevertheless, we find that the filing of the complaint against defendants for the second
surgery was not completed and that summary disposition pursuant to MCR 2.116(C)(7) was
properly granted in this case. In reaching this conclusion, we decide an issue expressly reserved
by our Supreme Court in Scarsella II, i.e., "[w]hether a timely filed affidavit that is grossly
nonconforming to the statute tolls the statute [of limitations]."5 Scarsella II, supra at 553 n 7. In
the present case, Dr. Siegel's affidavit not only fails to contend that Dr. Goldberg inappropriately
injected the anesthetic during the second surgery, the affidavit also fails to certify any merit to
the assertion in the complaint that Dr. Goldberg breached any standard of care in the second
surgery. Rather, the statements in the affidavit concerning the second surgery refer only to other
defendants. According to MCL 600.2912d(1),
[t]he affidavit of merit . . . shall contain a statement of each of the following:
4
The parties, as well as the trial court, do not distinguish between the two claimed instances of
malpractice, but we address the issue because it is necessary for a proper determination of this
case. Steward v Panek, 251 Mich App 546, 554; 652 NW2d 232 (2002).
5
In dicta, the Holmes Court stated that "[t]he Supreme Court's language [in n 7 of its Scarsella
opinion] seems to suggest its contemplation that an affidavit of merit failing to comply with the
substantive requirements imposed by MCL 600.2912d(1)(a)-(d) . . . , when filed together with a
complaint, might possibly be sufficient to commence a medical malpractice action." Holmes,
supra at 712 n 4. We respectfully disagree and decline to apply the Holmes dicta as binding
precedent to this case.
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(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 [required by MCL 600.2912b].
(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. [MCL 600.2912d(1)(a)(d) (emphasis added).]
We conclude that because the affidavit does not contain the requisite statements
concerning claims of Dr. Goldberg's alleged malpractice in the second surgery, plaintiffs'
affidavit is "grossly nonconforming" with respect to this claim. We further find that because the
affidavit is "grossly nonconforming" to the requirements of the statute, the statements of Dr.
Siegel are insufficient to constitute an affidavit of merit within the meaning of the statute with
respect to the claims against defendants for the second surgery. Thus, as a matter of law,
plaintiffs' complaint against defendants for the second surgery was not commenced because of
their failure to file an affidavit of merit before the period of limitations expired on December 11,
2000, and summary disposition is appropriate. Scarsella II, supra at 549.
In this regard, the analysis of this Court in Holmes, supra, is instructive. There, this
Court found that the period of limitations was not tolled when the plaintiff filed an unsworn
affidavit of merit after filing his complaint because, pursuant to MCL 600.2912d(1), the unsworn
statement was not a valid affidavit. Holmes, supra at 711-712, 714. Although plaintiffs in this
case filed a sworn affidavit, the affidavit does not address the merit of any claims against
defendants. Thus, the affidavit cannot be said to be an affidavit sufficient within the meaning of
MCL 600.2912d(1) to certify the merit of any claims against defendants for the June 10, 1998,
surgery. Furthermore, because the affidavit does not certify the merit of claims against
defendants for the second surgery, its filing does not fulfill the goal of MCL 600.2912d to
prevent frivolous medical-malpractice actions. Dorris v Detroit Osteopathic Hosp Corp, 460
Mich 26, 47; 594 NW2d 455 (1999).
We also find that the trial court did not abuse its discretion by failing to grant plaintiffs'
request that the affidavit relate back to the date of the complaint. As the Scarsella II Court
noted:
"Plaintiff contends that he should have been allowed to amend his
September 22, 1996, complaint by appending the untimely affidavit of merit. He
reasons that such an amendment would relate back, see MCR 2.118(D), making
timely the newly completed complaint. We reject this argument for the reason
that it effectively repeals the statutory affidavit of merit requirement. Were we to
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accept plaintiff 's contention, medical 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." [Scarsella II, supra at 550, quoting Scarsella I, supra
at 65.]
See also VandenBerg II, supra at 662.
Affirmed.
Fitzgerald, P.J., concurred.
/s/ Kurtis T. Wilder
/s/ E. Thomas Fitzgerald
Cooper, J. (concurring). I concur in the result only.
/s/ Jessica R. Cooper
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