James Wade v. William McCadie Do
335418
| Mich. Ct. App. | Nov 14, 2017Background
- Plaintiff James Wade alleged long-term negligence by Dr. McCadie caused renal/kidney failure; he admitted claim accrued in April 2011 and the two-year limitations period expired in April 2013.
- Wade sent a notice of intent to sue in August 2012 and requested medical records; defendants produced records but some older lab records (pre-1992) had been destroyed per retention rules.
- Wade filed his complaint on February 22, 2013 but did not attach an affidavit of merit; this affidavit was later prepared and submitted by counsel but bears a clerk date-stamp of May 28, 2013.
- On prior appeal this Court held Wade was entitled to a 91-day extension to file the affidavit under MCL 600.2912d(3) because defendants failed to provide complete records within the statutory 56 days; the Michigan Supreme Court vacated part of that opinion but not the result and remanded.
- On remand defendants moved for dismissal under MCR 2.116(C)(7) arguing the affidavit was filed May 28, 2013 (after the 91-day extension and after the statute of limitations), while Wade produced circumstantial evidence he mailed the affidavit for delivery May 24, 2013 and emailed defendants May 23–24.
- The trial court and this panel concluded the only objective proof of filing was the clerk’s date-stamp and register; the affidavit was therefore filed May 28, 2013 and the claim was time-barred and dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wade timely filed the affidavit of merit within the 91-day MCL 600.2912d(3) extension | Affidavit was mailed to the court for delivery May 24, 2013 and emailed to defense counsel May 23–24, so it was timely filed | Clerk-stamped filing date is May 28, 2013; no evidence the clerk received it earlier; therefore untimely | Held: Affidavit was filed May 28, 2013 per clerk stamp/register; untimely and claim dismissed as time-barred |
| Whether the court should treat counsel’s prior statements (that affidavit was filed May 24) as binding judicial admissions | Counsel’s prior statements and communications show defendants had the affidavit within the 91-day period; should bind defendants | Prior statements were informal and not solemn admissions for dispensing with formal proof | Held: Statements were not binding judicial admissions |
| Whether equitable tolling or other equitable relief could save Wade’s claim | Equitable tolling should apply because defect was inadvertent and defendants were not prejudiced | Failure to timely file was counsel negligence; equitable tolling not appropriate under controlling precedent | Held: Equitable tolling not available; failure was negligent, not extraordinary circumstances |
| Whether trial court could use MCL 600.2301 or other equitable powers to amend filing date | Court should amend filing date to reflect the actual delivery date to avoid harsh forfeiture | Court may not use amendment power to circumvent statute of limitations; Tyra and precedent bar such relief | Held: MCL 600.2301 cannot be used to save a time-barred claim; court properly declined to amend filing date |
Key Cases Cited
- Scarsella v. Pollak, 461 Mich 547 (Michigan Supreme Court) (an affidavit of merit is required with the complaint in medical-malpractice actions)
- Ligons v. Crittenton Hosp., 490 Mich 61 (Michigan Supreme Court) (complaint without required affidavit does not toll limitations; dismissal if limitations expire before compliant filing)
- Solowy v. Oakwood Hosp. Corp., 454 Mich 214 (Michigan Supreme Court) (28-day extension under MCL 600.2912d(2) tolls limitations)
- VandenBerg v. VandenBerg, 231 Mich App 497 (Michigan Court of Appeals) (remedy and prejudice analysis for missing affidavit of merit)
- VandenBerg v. VandenBerg, 253 Mich App 658 (Michigan Court of Appeals) (affidavit filed after statute of limitations bars claim)
- Ward v. Rooney-Gandy, 265 Mich App 515 (Michigan Court of Appeals) (equitable tolling discussion; later reversed by Supreme Court order)
- Young v. Sellers, 254 Mich App 447 (Michigan Court of Appeals) (recognizes Scarsella constraint; inadvertent errors do not excuse missing affidavit)
- Tyra v. Organ Procurement Agency of Mich., 498 Mich 68 (Michigan Supreme Court) (limits use of amendment powers to rescue time-barred claims)