999 N.W.2d 359
Mich.2023Background
- Candi Ottgen had two thumb surgeries (May 1 and July 23, 2017); plaintiffs sued April 11, 2019 alleging malpractice from the first surgery.
- Plaintiffs’ original April 11, 2019 complaint was filed without the affidavit of merit (AOM) required by MCL 600.2912d(1).
- Defendants moved to dismiss under Scarsella v Pollak, arguing a complaint filed without an AOM does not commence the action and thus does not toll the two-year limitations period.
- Plaintiffs filed an amended complaint (May 13, 2019) attaching an AOM executed January 30, 2019, claimed its omission was clerical, and asked to relate the AOM back to the original filing.
- Trial court allowed the late AOM and relation back; the Court of Appeals reversed, holding Scarsella applied and dismissing the claims as time-barred with prejudice.
- The Michigan Supreme Court granted leave, considered whether Scarsella was correctly decided, and remanded for further proceedings after overruling Scarsella.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an AOM is required to commence a medical-malpractice action and toll the statute of limitations | Ottgen: filing a timely complaint (even without the AOM attached) commences the action and tolls the limitations period; AOM omission can be cured | Katranji: Scarsella controls — absence of an AOM means no commencement/tolling, so the claim is time-barred | Court: AOM not required to commence/toll; timely filed and served complaint tolls limitations; Scarsella overruled |
| Whether Scarsella was correctly decided / should be followed (stare decisis) | Ottgen: Scarsella deviates from statutory text and has caused unworkable results; should be overruled | Katranji: Scarsella provides necessary guardrails against gamesmanship; overturning it destabilizes prior holdings | Court: Scarsella was wrongly decided, unworkable, and not supported by reliance interests; overruled |
| Proper remedy when complaint lacks AOM (dismissal with or without prejudice and relation-back of late AOM) | Ottgen: omission was clerical; AOM executed before filing; trial court’s allowance of relation back was appropriate | Katranji: omission prevents tolling; late AOM cannot cure an untimely claim under Scarsella | Court: AOM violations remain sanctionable, but dismissal cannot be based on statute-of-limitations grounds; trial court must decide whether dismissal should be with or without prejudice — remanded for further proceedings |
Key Cases Cited
- Scarsella v. Pollak, 461 Mich 547 (2000) (previously held AOM absence prevented commencement/tolling; overruled)
- Progress Mich v. Attorney General, 506 Mich 74 (2020) (refused to extend Scarsella logic to verification requirement; supports tolling on filing)
- Ligons v. Crittenton Hosp., 490 Mich 61 (2011) (AOM is not part of the complaint itself)
- Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich 26 (1999) (approved dismissal without prejudice under certain AOM-failure facts; remedy depends on circumstances)
- Kirkaldy v. Rim, 478 Mich 581 (2007) (remedy for defective AOM: dismissal without prejudice; discussed presumption of validity for filed AOMs)
- Saffian v. Simmons, 477 Mich 8 (2007) (when AOM is filed with complaint, defendant must answer; unilateral challenge to AOM does not excuse answering)