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STATE OF MICHIGAN COURT OF APPEALS JAMES KEYES and ROSALIE KEYES, UNPUBLISHED February 23, 2001 Plaintiffs-Appellants, v RUSSELL ROTHROCK, M.D., and BATTLE CREEK NEUROSURGICAL SERVICES, P.C., No. 218684 Calhoun Circuit Court LC No.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. MURPHY, P.J. (concurring). I concur with the decision of my colleagues to affirm, but only because we are bound by the statutory language and previous decisions as set forth in the majority opinion. I write separately to note my sympathy for plaintiffs' arguments because I believe that the ultimate intent of this legislation, a reduction in frivolous medical malpractice claims, is simply not served in the case at bar. Given the circumstances herein presented, where a clearly meritorious claim is being foreclosed on this purely procedural technicality, I am distressed that neither the statutory scheme nor the court rules provide the possibility of a sanction less harsh than dismissal. I would encourage the Legislature and the Supreme Court to reconsider this matter so as to empower the trial judge with some discretion to act under appropriate circumstances in order to avoid injustice. /s/ William B. Murphy

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