JAMES KEYES V RUSSELL ROTHROCK MD
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES KEYES and ROSALIE KEYES,
UNPUBLISHED
February 23, 2001
Plaintiffs-Appellants,
v
RUSSELL ROTHROCK, M.D., and BATTLE
CREEK NEUROSURGICAL SERVICES, P.C.,
No. 218684
Calhoun Circuit Court
LC No. 98-004538-NM
Defendants-Appellees,
and
BATTLE CREEK HEALTH SYSTEM,
Defendant.
Before: Murphy, P.J., and Griffin and Wilder, JJ.
PER CURIAM.
In this medical malpractice action plaintiffs appeal as of right from the trial court’s grant
of summary disposition in favor of defendants, and the court's denial of plaintiffs' motion to
amend the complaint. We affirm.
This case arises out of a surgical procedure performed by defendant Rothrock on plaintiff
James Keyes on May 9, 1996. On March 20, 1998, plaintiffs sent defendants Rothrock and
Battle Creek Health System notice of intent to a file claim pursuant to MCLA 600.2912b. Then
on October 23, 1998, plaintiffs filed their complaint against defendants Rothrock, Battle Creek
Neurosurgical Services, and Battle Creek Health Services. Plaintiffs alleged injuries attributable
to defendant Rothrock's negligence in performing the May 9, 1996 procedure.
Although plaintiffs had obtained an affidavit of merit from Donald C. Austin, M.D.,
which was signed and notarized on September 21, 1998, by virtue of a clerical error the affidavit
was not attached to the complaint when it was filed on October 23, 1998. Plaintiffs did not file
the affidavit with the lower court until November 25, 1998, eighteen days after the statute of
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limitations had run on plaintiffs’ claim.1 The trial court granted defendants’ motion for summary
disposition on the ground that plaintiffs failed to comply with MCL 600.2912d(1); MSA
27A.2912(4)(1), which requires the filing of an affidavit of merit with a medical malpractice
complaint.
Plaintiffs argue that the trial court erred in granting summary disposition. We disagree.
We review de novo the decision on a motion for summary disposition under MCR 2.116(C)(8).
VandenBerg v VandenBerg, 231 Mich App 497, 499; 586 NW2d 570 (1998).
In relevant part, MCL 600.2912d; MSA 27A.2912(4) provides:
(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 section 2169.
***
(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).
The period of limitations for an action charging malpractice is two years. MCL 600.5805(4);
MSA 27A.5805(4). The alleged malpractice upon which plaintiffs’ claim is based occurred
during the surgical procedure defendant Rothrock performed on May 9, 1996. Therefore, the
period of limitations for plaintiffs’ claim would have ended on May 9, 1998. See MCL
600.5838a; MSA 27A.5838a. However, the notice of intent that plaintiffs sent to defendants on
March 20, 1998, tolled the statute of limitations for a period of 182 days. MCL 600.5856(d);
MSA 27A.5856(d). Thus, the period of limitations did not begin to run again until September
18, 1998, at which point plaintiffs had fifty days to initiate the claim against defendants. Under
these circumstances, the period of limitations for plaintiffs’ claim ended on November 7, 1998.
1
The completed affidavit of merit was referenced in the complaint, but attached to neither the
complaint filed with the court nor the complaint served on defendants. Apparently, defendants
identified the affidavit as missing when the complaint was served on Dr. Rothrock on November
6, 1998. Defendants contacted the court in search of a copy of the affidavit, but were informed
that the affidavit was likewise missing from the copy of the complaint filed with the court.
Accordingly, defendants drafted their successful motion for summary disposition, dated
November 20, 1998 and filed November 23, 1998. Plaintiffs filed the affidavit with the court on
November 25, 1998, immediately after being put on notice of its inadvertent omission through
receipt of defendants motion for summary disposition on November 23, 1998.
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As previously noted, plaintiffs timely filed their complaint on October 23, 1998. They
did not, however, file the affidavit of merit until November 25, 1998. When a plaintiff fails to
timely file an affidavit of merit with a complaint alleging medical malpractice, the statutory
period of limitations continues to run and will expire if the defect is not cured before the period
expires. Holmes v Michigan Capital Medical Center, 242 Mich App 703, 708-709; 620 NW2d
319 (2000); Scarsella v Pollak, 232 Mich App 61, 63-64; 591 NW2d 257 (1998), aff'd 461 Mich
547; 607 NW2d 711 (2000). Accordingly, the trial court correctly granted summary disposition
in favor of defendants because plaintiffs’ claim was time-barred when the affidavit of merit was
filed.
Plaintiffs next argue that the trial court improperly denied their motion to amend the
complaint. We again disagree. We review grants and denials of motions for leave to amend
pleadings for an abuse of discretion. Hakari v Ski Brule, Inc, 230 Mich App 352, 355; 584
NW2d 345 (1998).
Plaintiffs’ argument with regard to this issue is identical to the argument presented and
explicitly rejected in Scarsella, where this Court reasoned:
Plaintiff contends that he should have been allowed to amend his . . .
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 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); MSA 27A.2912(4)(1), that the plaintiff "shall file with the
complaint an affidavit of merit," as well as the legislative remedy of MCL
600.2912d(2); MSA 27A.2912(4)(2), allowing a twenty-eight-day extension in
instances where an affidavit cannot accompany the complaint. [Scarsella, supra
at 65.]
Our Supreme Court, in affirming Scarsella, adopted this Court's opinion in its entirety. 461
Mich at 548. The Court then added two points of clarification strengthening the holding that
plaintiffs must strictly comply with the requirement of § 2912d(1). Id. at 551-552. Finally, the
Court referenced MCR 2.112(L), which also reflects the statutory requirement. Id. at 553 n 6.2
Pursuant to the holding and clear analysis of our Supreme Court, we conclude that the
trial court did not abuse its discretion in denying plaintiffs’ motion for leave to amend their
2
These clarification points and the Court's additional analysis sought to foreclose potential
avenues by which plaintiffs could maneuver out from under the Scarsella holding. They in fact
render meritless a majority of the instant plaintiffs' arguments.
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complaint. Plaintiffs' attempt to remedy their error occurred beyond the limitation period. See
also Holmes, supra at 709.
Plaintiffs argue that dismissal with prejudice, and denial of leave to amend, was
unwarranted in this case because the affidavit was in existence when the complaint was filed and
when the period of limitations expired. Focusing on the fact that failure to attach the affidavit
was a mere clerical error, plaintiffs assert that this case should be distinguished from Scarsella
and other decisions in which the plaintiffs made no efforts to comply with the statutory
requirement. Plaintiffs further contend that given the circumstances of this case, where a mere
"hypertechnical" pleading deficiency is hindering an otherwise meritorious claim, the legislative
intent to limit frivolous claims would not be contravened by allowing this action to proceed.
We are bound by the plain language of the statute and the previous decisions of this Court
and our Supreme Court. Neither plaintiffs nor amicus curiae3 have, in support of their
arguments, presented case law on point, and nothing in the language of § 2912d(1) or MCR
2.112(L) suggests that it is sufficient for the affidavit of merit to simply be in existence at the
time of the filing of the complaint. Because plaintiffs did not file their affidavit of merit until
after the expiration of the period of limitations, the trial court properly granted summary
disposition in favor of defendants and appropriately denied plaintiffs' motion for leave to amend.
Affirmed.
/s/ Richard Allen Griffin
/s/ Kurtis T. Wilder
3
Pursuant to MCR 7.212(H), this Court granted the request of amicus curiae Michigan Trial
Lawyers Association to file a brief in this case. In that brief, amicus curiae not only supports
plaintiffs' arguments but also presents a detailed constitutional challenge to MCL 600.2912d;
MSA 27A.2912(4). Under the court rule, however, the amicus brief is limited to the issues raised
by the parties. MCR 7.212(H)(2). Because plaintiffs did not raise a constitutional challenge in
their statement of questions presented, and because their argument includes only a single
paragraph, devoid of authority, on the issue, we decline to address the multitude of issues
presented by amicus curiae.
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