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UNPUBLISHED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.
MURPHY, J. (concurring).
I concur with the decision to affirm because plaintiff failed to file an affidavit of merit
with the complaint and we are bound by the statutory language and previous decision in
Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000). It is distressing, nevertheless, that
neither the statutory scheme nor court rules provide the possibility of a sanction less harsh in a
case such as this where plaintiff claims the affidavit of merit was either inadvertently not filed, or
was lost by the court clerk. The trial court should be empowered with some discretion to act
under appropriate circumstances in order to avoid injustice. I would encourage the Legislature
and the Supreme Court to reconsider this matter.
/s/ William B. Murphy
-1-
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