REBECCA WILLIAMS JACKSON V MECOSTA COUNTY MEDICAL CENTER
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STATE OF MICHIGAN
COURT OF APPEALS
REBECCA WILLIAMS JACKSON,
UNPUBLISHED
July19, 2011
Plaintiff-Appellant,
v
MECOSTA COUNTY MEDICAL CENTER,
OBSTETRICS AND GYNECOLOGY OF BIG
RAPIDS, P.C., MHS SURGICAL SPECIALISTS,
CENTRAL MICHIGAN EMERGENCY
PHYSICIANS, MECOSTA COUNTY
RADIOLOGY, L.L.C., KATHRYN MEKARU,
M.D., ALAN GRILLO, M.D., JERRY PEARSON,
M.D., KRIS KENT, R.N., and CHRISTOPHER
KUSHNER, D.O.,
No. 295219
Mecosta Circuit Court
LC No. 09-019251-NH
Defendants-Appellees.
Before: SAWYER, P.J., and WHITBECK and OWENS, JJ.
PER CURIAM.
Plaintiff appeals as of right from the circuit court’s opinion and order granting
defendants’ motion for summary disposition and dismissing this case with prejudice based on the
expiration of the statute of limitations. We affirm.
I. FACTS
Plaintiff filed this lawsuit alleging medical malpractice in connection with the care and
treatment she received during an admission to defendant Mecosta County Medical Center from
January 21, 2007, through January 23, 2007. She filed her complaint on July 17, 2009, but it was
not accompanied by an affidavit of merit as required by MCL 600.2912d. On July 24, 2009, the
trial court granted plaintiff a 28-day extension to file an affidavit of merit, but none was ever
filed. On September 4, 2009, plaintiff filed a motion to waive the requirement, arguing that
MCL 600.2912d was unconstitutional because it denied indigent persons access to the courts,
and that it “allows for unlawful violations” of the Health Insurance Portability and
Accountability Act (HIPAA), 42 USC 1320d et seq. The trial court denied the motion and
ultimately dismissed the complaint.
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II. STANDARDS OF REVIEW
The constitutionality of a statute is a question of law reviewed de novo on appeal. Sills v
Oakland Gen Hosp, 220 Mich App 303, 313; 559 NW2d 348 (1996). Likewise, the proper
interpretation and application of statutes and court rules is also reviewed de novo on appeal.
Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).
III. AFFIDAVIT OF MERIT
Plaintiff first argues that the requirement of an affidavit of merit violated the separation
of powers doctrine. Further, she argues that it violated her constitutional rights by denying her
access to the courts, and that it violated her rights to due process and equal protection.
MCL 600.2912d(1) provides that
the plaintiff in an action alleging medical malpractice or, if the plaintiff is
represented by an attorney, the plaintiff’s attorney 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 . . . . The
affidavit of merit shall certify that the health professional has reviewed the notice
and all medical records supplied to him or her by the plaintiff’s attorney
concerning the allegations contained in the notice . . . .
A valid affidavit of merit must be filed with the complaint in order to commence a medical
malpractice action and toll the statute of limitations. Scarsella v Pollak, 461 Mich 547, 552-553;
607 NW2d 711 (2000).
With regard to plaintiff’s separation of powers argument, we note that in McDougall v
Schanz, 461 Mich 15, 26; 597 NW2d 148 (1999), the Court indicated that Const 1963, art 6, § ,
endowed it with rulemaking authority over matters involving “practice and procedure” but not
substantive law, and that this was consistent with the separation of powers set forth in Const
1963, art 3, § 2. The Court held that MCL 600.2169, which imposed certain requirements for the
admission of expert testimony in medical malpractice cases, did not usurp the Supreme Court’s
rule making authority over matters of practice and procedure. The Court concluded that it was
an enactment of substantive law because it reflected
“a careful legislative balancing of policy considerations about the importance of
the medical profession to the people of Michigan, the economic viability of
medical specialists, the social costs of “defensive medicine,” the availability and
affordability of medical care and health insurance, the allocation of risks, the costs
of malpractice insurance, and manifold other factors, including, no doubt, political
factors—all matters well beyond the competence of the judiciary to reevaluate as
justiciable issues.” [461 Mich at 35, quoting McDougall v Eliuk, 218 Mich App
501, 518; 554 NW2d 56 (1996) (TAYLOR, P.J., dissenting).]
In requiring an affidavit of merit before a medical malpractice case can proceed, the
Legislature has looked at the same policy considerations taken into account in McDougall. Just
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as they were deemed substantive for purposes of § 2169, we conclude they are substantive with
respect to § 2912d(1) for the same reasons.
Regarding the challenge to the constitutionality of § 2912d that was predicated on
principles of due process and equal protection, this Court rejected such a challenge in Bartlett v
North Ottawa Community Hosp, 244 Mich App 685, 696; 625 NW2d 470 (2001). There, the
Court held that § 2912d bore a rational relationship to a legitimate government interest:
Deterring the filing of frivolous lawsuits against any party or group is a
legitimate governmental interest. Moreover, a plaintiff intending to prevail on a
medical malpractice claim will eventually be required to provide evidence that a
facility or professional deviated from professional norms. Thus, requiring an
affidavit of merit is rationally related to achieving the result of reduced frivolous
medical malpractice claims. Accordingly, we are not persuaded that § 2912d
violates a medical malpractice plaintiff’s equal protection rights. [244 Mich App
at 695.]
With respect to due process, the plaintiff argued that § 2912d imposes “an unreasonable and
arbitrary limit on a plaintiff’s right to pursue a vested cause of action.” Bartlett, 244 Mich App
at 695. This Court noted that the rational basis test also applied to this argument, and stated:
[Section] 2912d does not prohibit a plaintiff from filing a lawsuit alleging medical
malpractice. Instead, § 2912d requires that a plaintiff file an affidavit of merit
from a health care professional indicating that there is merit to the plaintiff’s
claims. As noted above, the plaintiff must eventually provide evidence of
malpractice if the plaintiff intends to prevail in the action. Therefore, § 2912d
bears a reasonable relation to a permissible legislative objective and is not an
unconstitutional violation of due process. [Id. at 696.]
For the same reasons, § 2912d does not deny a plaintiff access to the courts; a plaintiff is free to
pursue a court action and simply must provide evidentiary support earlier in the process.
Compare Neal v Oakwood Hosp Corp, 226 Mich App 701, 721; 575 NW2d 68 (1997) (ruling
that Ҥ 2912b does not abrogate or vitiate any vested property rights plaintiff has in his cause of
action or effectively divest plaintiff of access to the courts”). Plaintiff’s arguments that the
affidavit of merit requirement imposes special financial and other burdens on a medical
malpractice plaintiff fall neatly under the due process and equal protection challenges rejected in
Bartlett. Bartlett is binding on this Court. See MCR 7.215(J)(1).
Plaintiff next argues at length that Scarsella was wrongly decided and should be
overturned. However, this Court lacks the authority to overrule our Supreme Court’s precedents,
or otherwise to deviate from them. See Const 1963, art 6, § 1; Estate of Edwards v Clinton
Valley Ctr, 138 Mich App 312; 360 NW2d 606 (1984).
Plaintiff suggests that Scarsella is in conflict with MCR 2.002, which governs the waiver
of fees. However, MCR 2.002 provides that it applies only to “filing fees” and fees for service
of process or publication. It does not apply to the costs associated with an affidavit of merit such
that a court must make funds available or provide the expert to satisfy the requirement. Plaintiff
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provides no authority for the proposition that a civil litigant is entitled to such coaching from the
court, or for the proposition that a litigant is entitled to financial assistance in preparing a civil
case at taxpayer expense. See In re Keifer, 159 Mich App 288, 294; 406 NW2d 217 (1987) (“A
party may not leave it to this Court to search for authority to sustain or reject its position.”).
IV. CONFLICT WITH FEDERAL LAW
Plaintiff argues generally that the affidavit of merit requirement conflicts with HIPAA
and the Health Information Technology for Economic and Clinical Health Act (HITECH), PL
111-5, Div A, Title XIII, Div B, Title IV, 123 Stat 226, 467 (approved February 17, 2009); see
42 USC 300jj et seq. and 42 USC 17901 et seq. Plaintiff fails to specify specific pairings of
statutory provisions that supposedly bring such conflicts to light. “A party may not merely
announce his position and leave it to us to discover and rationalize the basis for his claim.” In re
Toler, 193 Mich App 474, 477; 484 NW2d 672 (1992). However, we note that based on 45 CFR
164.508(a)(1), promulgated under HIPAA, a covered entity may disclose protected health
information if properly authorized. Moreover, a medical malpractice plaintiff necessarily is
putting the subject matter of an affidavit of merit in issue, thus in public view.
Affirmed.
/s/ David H. Sawyer
/s/ William C. Whitbeck
/s/ Donald S. Owens
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