CRYSTAL ARNOLD V MIDMICHIGAN MEDICAL CTR MIDLAND
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STATE OF MICHIGAN
COURT OF APPEALS
CRYSTAL ARNOLD,
UNPUBLISHED
July 26, 2007
Plaintiff-Appellant-Cross-Appellee,
v
No. 274488
Midland Circuit Court
LC No. 06-009665-NH
MIDMICHIGAN MEDICAL CENTERMIDLAND,
Defendant-Appellee-CrossAppellant.
Before: Talbot, P.J., and Cavanagh and Meter, JJ.
PER CURIAM.
Plaintiff appeals the grant of summary disposition in favor of defendant based on an
incomplete jurat on the affidavit of merit filed in this medical malpractice action. Defendant
cross appeals asserting, in the alternative, the propriety of summary disposition on plaintiff’s
claim of res ipsa loquitur. Having initially held this matter in abeyance, Arnold v MidMichigan
Medical Center, Midland, unpublished order of the Court of Appeals, entered June 12, 2007
(Docket No. 274488), pending our Supreme Court’s decision in Kirkaldy v Rim, 477 Mich 1063;
728 NW2d 862 (2007), we now reverse and remand this matter to the trial court.
On April 27, 2004, plaintiff was admitted to defendant for removal of her gallbladder.
Following successful completion of the medical procedure, plaintiff asserts defendant’s staff
dropped her while transferring her from the operating table to a gurney. Although plaintiff was
under anesthesia and not fully conscious when the alleged event occurred, she does recall a nurse
standing over her and instructing her not to move, which she associates with having been
dropped by defendant’s staff. Later, during her post-operative check up, the physician that
performed the gallbladder procedure stated he was not to be blamed for her being dropped and
that she should follow up with her family physician if she experienced any physical problems.
Defendant has consistently denied that plaintiff was dropped during any form of transfer while
under its care.
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Plaintiff consulted with her family physician due to right shoulder and right upper back
pain. When physical therapy did not alleviate these physical complaints, plaintiff underwent
surgical intervention for a herniated disk and cervical radiculopathy. Plaintiff filed a notice of
intent, in accordance with MCL 600.2912b and a three-count complaint alleging negligence,
medical malpractice and res ipsa locquitur.1 In conjunction with the filing of her complaint,
plaintiff also submitted an affidavit of merit, signed by Grace McCallum, R.N., which is the
primary focus of this appeal.
Defendant filed a motion for summary disposition, pursuant to MCR 2.116(C)(7) and
(C)(8), alleging plaintiff failed to state a claim under the doctrine of res ipsa loquitur. In
addition, defendant contended the affidavit of merit was fatally defective because of the
incomplete jurat, resulting in the expiration of the statute of limitations. Defendant contended
the affidavit of merit was insufficient because it addressed only the standard of care for nursing
staff and could not apply to other medical or professional staff potentially involved in the patient
transfer. The trial court ruled, “Plaintiff has stated a medical malpractice claim against
Defendant on the theory of vicarious liability at least with respect to its nurses.” Although the
trial court described plaintiff’s allegations as being “loose” it was determined that “all the
necessary elements for a res ipsa loquitur case” were met.
In reference to the affidavit of merit, the trial court concurred with defendant that it was
fatally defective because it failed to comply with MCL 55.287(2) of the Michigan Notary Public
Act, MCL 55.261 et seq. The affidavit contained the signature of the notary, date of execution
and the date of the notary’s commission expiration, but lacked the notary’s typed name and the
county in which her commission was effective or where the notarial act occurred. Relying, in
part, on Apsey v Memorial Hosp, 266 Mich App 666; 702 NW2d 870 (2005),2 the trial court
ruled, in relevant part:
[T]his Court holds that the notarial act, if any, underlying Plaintiff’s affidavit of
merit is invalid for the purpose of commencing her medical malpractice claim.
Since the action has not been properly commenced for lack of a valid affidavit of
merit, Plaintiff’s claim is now barred by the two-year statute of limitations.
At her motion for reconsideration, plaintiff presented the affidavit of the notary, Teresa A.
Kurtinaitis, providing her seal and verifying she was a notary public “duly registered in the State
of Michigan for the County of Wayne,” and that she had “confirmed the oath or affirmation” of
plaintiff’s expert witness. The trial court denied the motion.
On appeal, plaintiff challenges the grant of summary disposition in favor of defendant
and the denial of her motion for reconsideration based on the failure of the affidavit of merit to
comply with MCL 55.287(2). Plaintiff contends that the affidavit of merit meets the
1
The general negligence count was dismissed by the stipulation of the parties.
2
We would note that our Supreme Court has subsequently overruled this decision. Apsey v
Memorial Hosp, 477 Mich 120; 730 NW2d 695 (2007).
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requirements of MCL 600.2912d(1) and that any technical deficiency in the jurat is
inconsequential. We review de novo a trial court’s decision on a motion for summary
disposition. Wilson v Alpena Co Rd Comm, 474 Mich 161, 166; 713 NW2d 717 (2006).
MCL 600.2912d(1) provides, 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 section
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 take 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.
Advocating form over substance, defendant contends that the certification on the affidavit of
merit does not comport with statutory requirements. Plaintiff asserts that the deficiency in the
jurat is unrelated to the substantive affirmations of the affidavit and, thus, sufficiently complies
with the requirements of MCL 600.2912d(1).
In Holmes v Michigan Capital Med Ctr, 242 Mich App 703, 711; 620 NW2d 319 (2000),
this Court discussed the formal requirements of an affidavit, stating in relevant part:
To constitute a valid affidavit, a document must be (1) a written or printed
declaration or statement of facts, (2) made voluntarily, and (3) confirmed by the
oath or affirmation of the party making it, taken before a person having authority
to administer such oath or affirmation.
MCL 600.2912d(1) does not expressly mandate a jurat, requiring only “an affidavit of merit
signed by a health professional . . . .” Contrary to other cases determining an affidavit of merit to
be a nullity because it completely lacked a jurat or any indication that the affiant confirmed the
document’s contents by oath or affirmation, the only issue in this case pertains to the failure of
the jurat to conform to MCL 55.287(2), which provides:
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(1) A notary public shall place his or her signature on every record upon
which he or she performs a notarial act. The notary public shall sign his or her
name exactly as his or her name appears on his or her application for commission
as a notary public.
(2) On each record that a notary public performs a notarial act and
immediately near the notary public’s signature, as is practical, the notary public
shall print, type, stamp, or otherwise imprint mechanically or electronically
sufficiently clear and legible to be read by the secretary and in a manner capable
of photographic reproduction all of the following in this format or in a similar
format that conveys all of the same information:
(a) The name of the notary public exactly as it appears on his or her
application for commission as a notary public.
(b) The statement: “Notary public, State of Michigan, County of _____.”.
(c) The statement: “My commission expires _______.”.
(d) If performing a notarial act in a county other than the county of
commission, the statement: “Acting in the County of ______.”
(e) The date the notarial act was performed.
The requirements and effect of a jurat have been further defined by case law as follows:
The jurat is simply a certificate evidencing the fact that the affidavit was properly
made before a duly authorized officer. Although it has been said that strictly
speaking it is no part of the affidavit, but simply evidence that the latter has been
duly sworn to by the affiant, common prudence would dictate that a properly
executed jurat be attached to every affidavit. Its omission, however, in the
absence of a statute to the contrary, is not fatal to the validity of an affidavit, so
long as it appears either from the rest of the instrument or from evidence aliunde
that the affidavit was in fact duly sworn to before an authorized officer. This rule
is based upon the principle that a party should not suffer by reason of the
inadvertent omission of the officer to perform his duty. [Wise & Rich v Yunker,
223 Mich 203, 206; 193 NW 890 (1923) (citation omitted).]
In this instance, plaintiff’s affidavit of merit contained an incomplete jurat. Despite being
incomplete, the jurat demonstrates that McCallum signed the affidavit of merit under oath before
a notary public. The only dispute pertains to the identification of the notary public’s name and
the county in which the notarial act occurred or the notary was authorized to act. McCallum’s
expertise as a nurse and the content of the affidavit are not specifically challenged. Because the
content of the affidavit evidences confirmation by oath or affirmation before a notary it
substantially complies with both the requirements of MCL 600.2912d(1) and the formal
requirements for an affidavit and should not have been deemed invalid by the trial court. This is
consistent with our Supreme Court’s recent ruling in Kirkaldy overruling a line of cases, which
held “that filing a defective affidavit of merit is the functional equivalent of failing to file an
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affidavit of merit for the purpose of tolling the period of limitations.” Kirkaldy, supra at slip op
p 2. The implication of this ruling is that affidavits, even if defective or nonconforming, do not
require dismissal of an action. Rather, despite their deficiencies, such affidavits are “presumed
valid,” leaving it within “the court’s province to determine the sufficiency of [the] pleading[s].”
Saffian v Simmons, 477 Mich 8, 13; 727 NW2d 132 (2007).
Defendant further contends the affidavit of merit is deficient because McCallum fails to
indicate that she reviewed defendant’s records in determining a breach of the standard of care.
This claim is disingenuous. Notably defendant has denied that a fall occurred and, therefore, it is
questionable whether any relevant documentation even exists within defendant’s file or medical
records pertaining to plaintiff’s claim. Further, MCL 600.2912d(1) requires only “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.” There is no specific
requirement that the hospital or medical provider’s records must have been reviewed in order for
the expert to ascertain a breach of the standard of care.
On cross appeal, defendant asserts, as an additional theory supporting partial dismissal of
this action, that plaintiff has not set forth a sufficient pleading for her claim of res ipsa loquitur.
In accordance with Jones v Porretta, 428 Mich 132, 150-151; 405 NW2d 863 (1987) (footnotes
and citations omitted):
The major purpose of the doctrine of res ipsa loquitur is to create at least an
inference of negligence when the plaintiff is unable to prove the actual occurrence
of a negligent act . . . . [I]n order to avail themselves of the doctrine, plaintiffs in
their cases in chief must meet the following conditions:
(1) the event must be of a kind which ordinarily does not occur in the absence of
someone’s negligence;
(2) it must be caused by an agency or instrumentality within the exclusive control
of the defendant;
(3) it must not have been due to any voluntary action or contribution on the part of
the plaintiff.
A fourth criterion has also been identified, which requires that “[e]vidence of the true
explanation of the event must be more readily accessible to the defendant than to the plaintiff.”
Wilson v Stilwill, 411 Mich 587, 607; 309 NW2d 898 (1981). While application of the doctrine
of res ipsa loquitur is limited in cases of medical malpractice, “[a] res ipsa case is a
circumstantial evidence case. In a proper res ipsa loquitur medical case, a jury is permitted to
infer negligence from a result which they conclude would not have been reached unless someone
was negligent.” Jones, supra at 155-156 (citations omitted). However, “[s]uch an inference [of
negligence] must be based on more than speculation. If it is to be drawn from the happening of
an accident, there must be common knowledge or expert testimony that when such an accident
occurs, it is more probably than not the result of negligence.” Id. at 153.
It is well established that “a prima facie res ipsa medical malpractice case requires more
than a showing of bad result.” Jones, supra at 152. In this instance, plaintiff has failed to prove
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the first element of res ipsa loquitur. Specifically, no evidence was provided that her alleged
physical complaints would not normally occur in the absence of negligence. “Because we do not
know whether the injury complained of does not ordinarily occur in the absence of negligence,
we cannot properly apply the doctrine of res ipsa loquitur.” Woodard v Custer, 473 Mich 1, 8;
702 NW2d 522 (2005).
Specifically, the evidence was insufficient to support an inference that a breach of the
standard of care caused the alleged injuries. In Skinner v Square D Co, 445 Mich 153, 164; 516
NW2d 475 (1994), the Court noted that “[t]o be adequate, a plaintiff's circumstantial proof must
facilitate reasonable inferences of causation, not mere speculation.” A plaintiff must present
substantial evidence from which a jury may conclude that more likely than not, but for the
defendant's conduct, the plaintiff's injuries would not have occurred. Kaminski v Grand Trunk W
R Co, 347 Mich 417, 422; 79 NW2d 899 (1956). Plaintiff’s assertion comprises mere
speculation given that plaintiff has no independent recall or proof of the occurrence of any
negligent act and has only an isolated and unverified statement from her physician that a problem
occurred in her physical transfer from or within the operating room. More importantly, there is
no indication that plaintiff’s alleged injury was not merely the result of positioning or other
factors that occur routinely during surgery, or which were pre-existent. In other words, there is
no reasonable inference that “but for” defendant’s negligence the injury complained of by
plaintiff would not have occurred.
The mere possibility that a breach of duty by defendant caused plaintiff to sustain injuries
is not sufficient to establish causation or to apply the doctrine of res ipsa loquitur. Berryman v
KMart Corp, 193 Mich App 88, 92; 483 NW2d 642 (1992); Cloverleaf Car Co v Phillips
Petroleum Co, 213 Mich App 186, 194; 540 NW2d 297 (1995). Because the evidence must
demonstrate more than a mere possibility and courts cannot permit a jury to guess, Skinner,
supra, 445 Mich 166 (citation omitted), the trial court should have dismissed plaintiff’s claim
under this theory of causation.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Michael J. Talbot
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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