MARQUIS DYER V EDWARD P TRACHTMAN
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STATE OF MICHIGAN
COURT OF APPEALS
MARQUIS DYER,
UNPUBLISHED
January 12, 2006
Plaintiff-Appellant,
v
No. 264681
Oakland Circuit Court
LC No. 2000-024036-NH
EDWARD P. TRACHTMAN, D.O.,
Defendant-Appellee.
Before: Murray, PJ. and Jansen and Kelly, JJ.
PER CURIAM.
In this medical malpractice case, plaintiff appeals as of right the trial court’s order
granting summary disposition in defendant’s favor on the basis of plaintiff’s failure to file an
effective affidavit of merit before the statutory period of limitations expired. We affirm.
I. Facts
In a complaint filed on May 13, 1999, plaintiff alleged that he was injured during an
independent medical examination (IME), which he underwent for an unrelated civil action.
Plaintiff alleged that, during the IME, defendant forcefully rotated his right arm and shoulder 90
degrees, detaching the labrum from the right shoulder. Plaintiff alleged professional negligence,
battery, and breach of contract. Defendant filed a motion for summary disposition, asserting that
all of the claims sounded in professional negligence, but there was no physician-patient
relationship within the context of an IME. Plaintiff abandoned the medical malpractice claim
and filed a motion to amend the complaint to include an ordinary negligence claim. The trial
court granted defendant’s motion for summary disposition on all plaintiff’s claims and denied
plaintiff’s motion to amend as futile.
In a prior appeal in this Court, plaintiff argued that, although there was no physicianpatient relationship in the context of an IME, an ordinary negligence claim was not barred. This
Court, concluding that plaintiff’s claim was grounded in ordinary negligence, affirmed in part,
reversed in part, and remanded the case to the trial court. Dyer v Trachtman, 255 Mich App 659;
662 NW2d 60 (2003). After granting leave, our Supreme Court decided that plaintiff’s claim
sounded in medical malpractice, recognized a limited physician-patient relationship in an IME
setting, reversed this Court’s decision, and remanded to the case trial court reinstating plaintiff’s
medical malpractice claim. Dyer v Trachtman, 470 Mich 45; 679 NW2d 311 (2004).
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After the case was remanded to the trial court, plaintiff filed an amended complaint with
the same affidavit of merit that he had filed with his original complaint, which was signed by an
orthopedic surgeon.1 Defendant filed a motion for summary disposition arguing that the affidavit
was insufficient because defendant was a board certified physiatrist or physical medical and
rehabilitation doctor. Defendant argued, among other things, that, pursuant to MCL 600.2169,
plaintiff was required to file an affidavit signed by a specialist who was board certified in the
same specialty as defendant. Plaintiff responded arguing that the affidavit of merit substantially
complied with the statute because the expert was a specialist in IMEs and defendant is a
specialist in IMEs. The trial court ruled that plaintiff’s expert did not meet the requirements of
MCL 600.2169 because he did not have the same board certification as defendant. The trial
court further determined that plaintiff failed to file a conforming affidavit of merit before the
statutory period of limitation expired. The trial court entered an order granting defendant’s
motion for summary disposition. Plaintiff now appeals this order.
II. Analysis
Plaintiff contends that the trial court erred in granting defendant’s motion for summary
disposition. We disagree.
“We review de novo decisions regarding summary disposition motions.” Waltz v Wyse,
469 Mich 642, 647-648; 677 NW2d 813 (2004). “Under MCR 2.116(C)(7), summary
disposition is proper when a claim is barred by the statute of limitations. In determining whether
summary disposition was properly granted under 2.116(C)(7), this Court ‘consider[s] all
documentary evidence submitted by the parties, accepting as true the contents of the complaint
unless affidavits or other appropriate documents specifically contradict them.’” Id. (citation
omitted).
The first question we must address is whether plaintiff’s affidavit of merit was defective.
MCL 600.2912d provides that a plaintiff “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.” MCL 600.2169 provides “if the party
against whom or on whose behalf the testimony is offered is a specialist who is board certified,
the expert witness must be a specialist who is board certified in that specialty.” Defendant is a
board certified physiatrist or physical medicine/rehabilitation doctor. Plaintiff’s expert is a board
certified orthopedic surgeon. Because plaintiff’s expert does not meet the requirements of MCL
600.2169, he is not qualified to offer expert opinion testimony on the standard of care.
Plaintiff, however, asserts that the affidavit of merit was not defective because plaintiff’s
attorney reasonably believed that his expert met the requirements under MCL 600.2169. More
specifically, plaintiff contends that because our Supreme Court created a limited physicianpatient relationship in an IME setting and a physician conducting an IME is not treating or
diagnosing a patient, it is more appropriate to require the testifying expert to be one who
conducts IMEs rather than one who is board certified in the same specialty as defendant.
1
This affidavit, unlike the original, was notarized.
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However, MCL 600.2169 does not permit this, our Supreme Court did not create such an
exception to the statute, and we decline to recognize such an exception in this case.
Furthermore, despite plaintiff’s assertion that defendant’s specialty is not relevant to the standard
of care in this case, plaintiff alleged in his original and amended complaints that defendant “was
a licensed medical practitioner specializing in physical medicine and rehabilitation” and owed a
duty to “practice medicine with the reasonable skill and competence of an average physician
engaged in that specialty.” To support this claim, plaintiff was required to have the standard of
care set forth by another physician of the same specialty. Because plaintiff’s expert was not
board certified in the same specialty as defendant, we conclude that plaintiff’s affidavit of merit
was defective.
We next address what effect plaintiff’s defective affidavit of merit had on his claim. In
Geralds v Munson Healthcare, 259 Mich App 225, 240; 673 NW2d 792 (2003), this Court held
that because the plaintiff filed an affidavit of merit signed by an expert who was not board
certified in the same specialty as the defendant, the plaintiff’s complaint was insufficient to
commence a medical malpractice action. In this case, plaintiff’s affidavit was defective in the
same manner. Plaintiff filed the same affidavit of merit with both his original complaint alleging
medical malpractice and his amended complaint alleging medical malpractice. According to
Geralds, because the affidavit of merit was defective, plaintiff’s complaints did not commence a
medical malpractice action or toll the statutory period of limitations.
Plaintiff nonetheless contends that, pursuant to Bryant v Oakpointe Villa Nursing Center,
471 Mich 41; 684 NW2d 864 (2004), the statutory period of limitation was tolled because there
was confusion about the nature of plaintiff’s claim. We disagree. Unlike the plaintiff in Bryant,
who initially filed an ordinary negligence claim, plaintiff initially filed a medical malpractice
claim with a defective affidavit of merit. Even after our Supreme Court remanded this case and
reinstated plaintiff’s medical malpractice claim, plaintiff filed the same defective affidavit of
merit with his amended complaint. This complaint too was a nullity. It is undisputed that,
without tolling, the statutory period of limitation had expired long before the trial court entered
the order dismissing plaintiff’s claim. Therefore, the trial court did not err in dismissing
plaintiff’s claim with prejudice.
Affirmed.
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
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