ANTHONY SMITH V WALTER L EVERETT MD
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STATE OF MICHIGAN
COURT OF APPEALS
ANTHONY SMITH,
UNPUBLISHED
March 1, 2002
Plaintiff-Appellant,
v
WALTER L. EVERETT, M.D., and RIVERVIEW
HOSPITAL,
No. 229068
Wayne Circuit Court
LC No. 99-929425-NH
Defendants-Appellees.
Before: Bandstra, P.J., and Murphy and Murray, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting defendants’ motion for summary
disposition in this medical malpractice action. We affirm. This appeal is being decided without
oral argument pursuant to MCR 7.214(E).
On September 16, 1999, plaintiff filed a malpractice complaint alleging that defendants
failed to timely diagnose and treat a post-operative hemorrhage. The alleged malpractice
occurred on October 18, 1997. In their affirmative defenses, filed with their answer on October
28, 1999, defendants asserted that the action should be dismissed because plaintiff failed to
attach an affidavit of merit to the complaint. Defendants moved for summary disposition,
asserting that the action was barred by the two-year statute of limitations. When plaintiff could
not produce evidence that the affidavit was included in another court file, the court granted the
motion.
Where a medical malpractice plaintiff wholly omits to file an affidavit of merit, the filing
of the complaint is ineffective and does not toll the statute of limitations. Scarsella v Pollak, 461
Mich 547, 549; 607 NW2d 711(2000). Plaintiff asserts that defendants waived a challenge to the
missing affidavit of merit by not raising the issue in a timely manner, relying exclusively on this
Court’s decisions in Greathouse v Rhodes, 242 Mich App 221; 618 NW2d 106 (2000), and
Wilhelm v Mustafa, 243 Mich App 478; 624 NW2d 435 (2000). However, in a peremptory order
the Supreme Court reversed the decision in Greathouse, finding that there is no statutory or case
law basis for ruling that a medical malpractice expert must be challenged within a reasonable
time. Greathouse v Rhodes, 465 Mich 885; ___ NW2d ___ (2001).
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Similarly, there is no statutory or case law basis for ruling that a challenge to an absent
affidavit of merit must be raised within a reasonable time. Even if there were, defendants raised
the issue in their answer, and there was no unreasonable delay.
Affirmed.
/s/ Richard A. Bandstra
/s/ Christopher M. Murray
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