STATE OF MICHIGAN
COURT OF APPEALS
BETTY SIMON and BOBBY SIMON, SR.,
July 15, 2008
Hillsdale Circuit Court
LC No. 06-000408-NH
KIM WIDRIG, C.R.N.A., PASTOR A.
APEROCHO, JR., M.D., LIFECARE
ANESTHESIOLOGISTS, P.C., AND
HILLSDALE COMMUNITY HEALTH
Before: Sawyer, P.J., and Jansen and Hoekstra, JJ.
In this medical malpractice action, the trial court granted defendants’ motions for
summary disposition, dismissing with prejudice plaintiffs’ claims under MCR 2.116(C)(7), (8),
and (10). Plaintiffs appeal as of right. Because plaintiffs never properly commenced this action,
On January 5, 2005, plaintiff1 underwent surgery to remove an ovarian cyst at defendant
Hillsdale Community Health Center (Health Center). Before the surgery, defendant Kim Widrig,
C.R.N.A.,2 inserted an epidural catheter into plaintiff and administered the general anesthesia.
After surgery and upon waking from the anesthesia, plaintiff complained of parathesia and pain
in her lower legs and feet. The following day, tests performed by a neurosurgeon showed that
Plaintiffs, Betty and Bobby Simon, are wife and husband. Because any claims by Bobby
Simon are derivative of his wife’s claims, the term “plaintiff” in the singular refers to Betty
Widrig was employed as a nurse anesthetist by defendant Lifecare Anesthesiologists, PC.
Defendant Pastor Aperocho, M.D., was the president of Lifecare Anesthesiologists.
plaintiff suffered a direct neurotoxicity to the spinal cord and nerve root as a result of the
Lidocaine from the epidural. Plaintiff is now unable to walk without the assistance of a walker.
Plaintiffs mailed a notice of intent to defendants on March 8, 2006. On June 28, 2006,
just 112 days later, plaintiffs filed a complaint against defendants with the trial court.
Defendants, except Widrig, were served with a summons and a copy of the complaint on July 19,
2006. Widrig was served on September 9, 2006. In his answer, Widrig listed the following
All claims for damages as contained in Plaintiffs’ Complaint are
barred by the applicable Statute of Limitations and/or applicable savings
Plaintiffs have failed to comply with the provisions of MCL
That any or all named Plaintiffs failed to comply with the notice
provisions of MCL 600.2912b and that Plaintiffs’ action is thus barred.
Defendant gives notice that he will move for summary disposition.3
On January 12, 2007, two years and seven days after the alleged malpractice occurred,
Widrig moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). Widrig
claimed that, because a complaint filed before the expiration of the notice period, either 182
days, MCL 600.2912b(1), or 154 days, MCL 600.2912b(8), is insufficient to commence a
medical malpractice action and to toll the statute of limitations and because more than two years
had passed since the date of the alleged malpractice, plaintiffs’ claims were barred by the statute
of limitations. The remaining defendants joined in Widrig’s motion.
Plaintiffs moved to strike defendants’ affirmative defenses. According to plaintiffs,
because defendants chose to “set forth a boilerplate recitation of legal conclusions,” rather than
to provide a statement of the facts supporting the affirmative defenses, as required by MCR
2.111(F)(3), defendants had waived their affirmative defenses. The trial court denied the motion
to strike, finding that defendants, by stating that plaintiffs’ claims failed to comply with MCL
600.2912b and that the claims were barred by the applicable statute of limitations, placed
plaintiffs on notice that they failed to comply with the time requirements of MCL 600.2912b.
Thereafter, plaintiffs responded to Widrig’s motion for summary disposition. They
claimed that, because a civil action is commenced upon the filing of a complaint with the trial
court, they commenced the medical malpractice action when they filed the complaint and,
The Health Center listed plaintiffs’ “failure to comply with MCL 600.2912b” as an affirmative
defense. Lifecare Anesthesiologists and Aperocho listed neither the statute of limitations nor
plaintiffs’ failure to comply with MCL 600.2912b as an affirmative defense.
therefore, the statute of limitations was tolled. In addition, because none of defendants
evidenced an intent to settle the present case, plaintiffs claimed that the filing of the complaint
before the notice period expired did not prejudice defendants.
The trial court, citing to Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424
(2005), stated that it had no choice but to grant summary disposition to defendants. Because the
limitation period had expired, the trial court dismissed plaintiffs’ claims with prejudice.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Healing Place at North Oakland Medical Ctr v Allstate Ins Co, 277 Mich App 51, 55; 744
NW2d 174 (2007). Summary disposition is proper under MCR 2.116(C)(7) if the claim is barred
by the statute of limitations. Al-Shimmari v Detroit Medical Ctr, 477 Mich 280, 288; 731 NW2d
29 (2007). Generally, the statute of limitations in a medical malpractice is two years from the
date the claim accrues. MCL 600.5805(6); Braverman v Garden City Hosp, 275 Mich App 705,
710; 740 NW2d 744 (2007), aff’d 480 Mich 1159 (2008).
Plaintiffs concedes they filed the complaint with the trial court before the notice period,
MCL 600.2912b(1), (8), expired. Nonetheless, they claim the trial court erred in granting
summary disposition to defendants Pastor Aperocho, M.D., and Lifecare Anesthesiologists
because the two defendants failed to plead a statute of limitations defense or any defense based
on plaintiffs’ failure to comply with MCL 600.2912b in their answer, as required by MCR
2.111(F)(2). Similarly, plaintiffs claim the trial court erred in granting summary disposition to
the Health Center because it failed to set forth in its answer any facts to support its defense that
plaintiffs failed to comply with MCL 600.2912b. See MCR 2.111(F)(3). Finally, plaintiffs
claim the trial court erred in granting summary disposition to Widrig because Widrig was not
served with a summons and a copy of the complaint until after the notice period had expired.
According to plaintiffs, the present action was not commenced against Widrig until he had been
served with process.
A. Timeliness of Complaint
A medical malpractice claimant is prohibited from commencing suit against a health
professional or health facility unless written notice is provided to the professional or facility
before the action is commenced. MCL 600.2912b(1); Burton, supra at 751. MCL 600.2912b(1)
Except as otherwise provided in this section, a person shall not commence
an action alleging medical malpractice against a health professional or health
facility unless the person has given the health professional or health facility
written notice under this section not less than 182 days before the action is
commenced. [Emphasis added.]
Generally, the claimant must wait 182 days after providing the notice of intent to commence the
medical malpractice action. MCL 600.2912b(1). However, the plaintiff may commence the
action after 154 days if the health professional or health facility fails to respond to the notice of
intent. MCL 600.2912b(8). As already stated, plaintiffs concede that they filed the complaint
with the trial court before the notice period expired.4
MCL 600.2912d(1) provides that, in a medical malpractice action, a “plaintiff’s attorney
shall file with the complaint an affidavit of merit signed by a health professional . . . .” In
Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000), the Supreme Court held that,
based on the Legislature’s use of the word “shall,” a “mandatory and imperative” directive in
MCL 600.2912d(1), the mere tendering of a complaint without the required affidavit of merit is
insufficient to commence a medical malpractice action.
Relying on Scarsella, the Supreme Court in Burton, supra at 753-754, held that a
complaint filed before the expiration of the notice period is insufficient to commence a medical
The directive in § 2912b(1) that a person “shall not” commence a medical
malpractice action until the expiration of the notice period is similar to the
directive in § 2912d(1) that a plaintiff’s attorney “shall file with the complaint an
affidavit of merit . . . .” Each statute sets forth a prerequisite condition to the
commencement of a medical malpractice lawsuit. The filing of a complaint
before the expiration of the statutorily mandated notice period is no more
effective to commence a lawsuit than the filing of a complaint without the
required affidavit of merit. In each instance, the failure to comply with the
statutory requirement renders the complaint insufficient to commence the action.
Thus, as plaintiffs conceded, the complaint in this case was untimely, and it failed to
properly commence the malpractice action.
B. Statute of Limitation Defense
Nevertheless, plaintiffs maintain that defendants Aperocho and Lifecare
Anesthesiologists should be precluded from asserting a statute of limitations defense because
they failed to properly preserve it as required by MCR 2.111(F)(2). We disagree.
In Auslander v Chernick, unpublished opinion per curiam of the Court of Appeals, issued
May 1, 2007 (Docket No. 274079), reversed 480 Mich 910 (2007), the plaintiffs filed a medical
malpractice complaint unaccompanied by an affidavit of merit. The defendants, in their answers,
asserted that the plaintiffs’ claims were “barred by the statute of limitations as it applies to
malpractice actions” and that plaintiffs’ affidavit of merit “fails to meet the requirements” of
MCL 600.2912a and MCL 600.2912d. The defendants moved for summary disposition, arguing,
in part, that plaintiffs failed to file an affidavit of merit with the complaint. In response, the
plaintiffs argued that, because the defendants failed to set forth any factual basis for its
affirmative defenses, the defense was waived pursuant to MCR 2.111(F)(2). Finding that the
Plaintiffs also do not dispute that, because the statute of limitations did not expire during the
notice period, the statute of limitations was not tolled by MCL 600.5856(c).
defendants waived any defenses relating to the sufficiency of the affidavit of merit for failure to
plead a sufficient factual basis, the trial court denied the defendants’ motion for summary
disposition, and a panel of this Court affirmed. According to the Court, the asserted defense was
not only devoid of facts underlying the defense, it was contrary to the facts because it indicated
that an affidavit of merit had been filed. Id., slip op 3.
The Supreme Court reversed “for the reasons stated in the Court of Appeals dissenting
opinion,” and it remanded for entry of an order granting the defendants’ motion for summary
disposition. Auslander v Chernick, 480 Mich 910; 739 NW2d 620 (2007). The dissenting judge
in Auslander opined:
I fully acknowledge that a defendant must raise certain defenses in its first
responsive pleading, and that a failure to do so may result in the waiver of those
defenses. See MCR 2.111(F)(2); MCR 2.111(F)(3). However, I conclude that
[the] defendants were never required to raise or plead their asserted defenses in
the first instance because this medical malpractice action was never properly
[The p]laintiffs’ claims arose, at the latest, at the time of the myocardial
infarction in March 2003. “[T]he mere tendering of a complaint without the
required affidavit of merit is insufficient to commence [a medical malpractice]
lawsuit,” and therefore does not toll the two-year period of limitations.
Scarsella[, supra at 549-550.] In this case, [the] plaintiffs wholly omitted to file
the requisite affidavits of merit, and their complaint of September 2004 was
therefore insufficient to toll the limitations period. Id. Regardless whether [the]
defendants properly raised and preserved the statute-of-limitations and affidavitof-merit defenses in their first responsive pleading, the period of limitations was
not tolled by plaintiffs’ complaint, and plaintiffs’ claims were already time-barred
at the time of the circuit court’s ruling. Id. at 553. I would reverse and remand
for dismissal with prejudice of [the] plaintiffs’ claims. MCR 2.116(C)(7);
Scarsella, supra at 551-552. [Auslander, supra at slip op 1-2 (Jansen, J.,
Because they filed the complaint before the notice period expired, plaintiffs never
properly commenced this medical malpractice action. Burton, supra at 752. Therefore,
Because, from the terms of the Supreme Court’s peremptory order in Auslander and this
Court’s unpublished opinion, this Court can determine the applicable facts and the reason for the
Supreme Court’s decision, the Supreme Court’s peremptory order constitutes binding precedent.
See Wechsler v Wayne Co Rd Comm, 215 Mich App 579, 591 n 8; 546 NW2d 690 (1996),
remanded on other grounds 455 Mich 863 (1997); see also Evans & Luptak, PLC v Lizza, 251
Mich App 187, 195-196; 650 NW2d 364 (2002) (finding as binding precedent a peremptory
order from the Supreme Court when the order stated that the Supreme Court “agrees with the
Court of Appeals dissent’s discussion of principles” and the opinion from this Court was an
defendants were not required to plead a statute of limitations defense in their answer. Regardless
whether defendants properly raised and preserved such a defense in their answers, the two-year
limitation period was not tolled by the filing of plaintiffs’ complaint, and plaintiffs’ claims were
already time-barred at the time of the trial court’s ruling. Id. at 756.6 Accordingly, we affirm the
trial court’s order granting defendants’ motions for summary disposition with prejudice.7
C. Service of Summons
In affirming the trial court’s order, we also reject plaintiffs’ claim that the action against
Widrig was not commenced until September 9, 2006, the day Widrig was served with process
and which was more than 182 days after the notice of intent was mailed.8 “A civil action is
commenced by filing a complaint with a court.” MCR 2.101(B). See also MCL 600.1901 (“A
civil action is commenced by filing a complaint with the court”); MCL 600.5856(a) (the statute
of limitations is tolled “[a]t 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”). We
recognize that, because of Burton, supra, and Scarsella, supra, a medical malpractice action is
not commenced upon the mere filing of a complaint with the trial court. A medical malpractice
action is only commenced if the complaint is filed after the notice period has expired, Burton,
supra, and an affidavit of merit accompanies the complaint, Scarsella, supra. However, nothing
in Burton or Scarsella supports the proposition that a medical malpractice action is not
commenced until the defendant has been served with process.
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra
Although defendants may not have been prejudiced by plaintiffs’ premature filing of the
complaint, prejudice to defendants is not relevant to the inquiry whether, because of plaintiffs’
failure to comply with MCL 600.2912b, summary disposition should be granted to defendants.
Burton, supra at 753.
In supplemental authority, plaintiffs claim that, based on Kirkaldy v Rim, 478 Mich 581, 585586; 734 NW2d 201 (2007), the proper remedy for their failure to comply with the requirements
of MCL 600.2912b is dismissal without prejudice. In Kirkaldy, the Supreme Court stated that
the statute of limitations is tolled when a complaint and an affidavit of merit are filed. However,
as stated by the Supreme Court, the filing of a complaint before the expiration of the notice
period is the equivalent of filing a complaint without an affidavit of merit. Burton, supra at 753754. Neither is sufficient to commence a medical malpractice action. Id. at 754. Accordingly,
we conclude Kirkaldy is not applicable to the present case.
We note that plaintiffs’ argument on appeal is inconsistent with the position taken below, that
the medical malpractice action was commenced when the complaint was filed. “A party may not
take a position in the trial court and subsequently seek redress in an appellate court that is based
on a position contrary to that taken in the trial court.” Living Alternatives for the
Developmentally Disabled, Inc v Dep’t of Mental Health, 207 Mich App 482, 484; 525 NW2d