CANDI OTTGEN and PATRICK OTTGEN v. ABDALMAIJID KATRANJI, M.D., KATRANJI RECONSTRUCTIVE SURGICAL INSTITUTE, KATRANJI RECONSTRUCTIVE SURGERY INSTITUTE, PLLC, KATRANJI FAMILY FOUNDATION, KATRANJI HAND CENTER, and KATRANJI INSTITUTE
No. 163216
Michigan Supreme Court
July 14, 2023
512 Mich. 1
Chief Justice: Elizabeth T. Clement. Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden. Reporter of Decisions: Kathryn L. Loomis. Argued October 12, 2022.
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
OTTGEN v KATRANJI
Docket No. 163216. Argued October 12, 2022. Decided July 14, 2023.
Candi Ottgen and her husband, Patrick Ottgen, brought a medical malpractice action in the Ingham Circuit Court against Abdalmaijid Katranji, M.D., and others, alleging that Katranji had negligently performed two thumb surgeries on Candi Ottgen on May 1, 2017, and July 23, 2017. Plaintiffs filed the action on April 11, 2019, focusing their complaint on the first surgery, but they did not attach an affidavit of merit (AOM) to the complaint as required by
In a unanimous opinion by Justice VIVIANO, the Supreme Court held:
Scarsella was erroneously decided and failed to survive a stare decisis analysis, and it was therefore overruled. Filing an AOM under
1. The starting point for an action is the filing of a complaint with a court, as clearly stated by
2. Before overruling a decision, the Michigan Supreme Court considers whether the decision defies practical workability, whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision. The first factor, “practical workability,” involves the reception of the decision by courts and parties and the ease of its application. Considerations that are relevant to this analysis include whether the decision has been met with criticism, whether its application has been contested or difficult, and, in the context of statutory interpretation, whether a reader of the underlying statute would be unable to rely on its plain meaning in light of the decision‘s departure from that meaning. Scarsella did little
Court of Appeals judgment reversed; case remanded to the trial court for further proceedings.
Justice ZAHRA, concurring, agreed that that filing an AOM under
Justice BOLDEN did not participate in the disposition of this case because the Court considered it before she assumed office.
FILED July 14, 2023
STATE OF MICHIGAN
SUPREME COURT
BEFORE THE ENTIRE BENCH (except BOLDEN, J.)
VIVIANO, J.
The question in this case is narrow and seemingly straightforward: when does a medical malpractice action begin? The answer is important because a medical malpractice plaintiff may not bring or maintain an action if the action is not commenced within the statutory limitations period. The running of the statutory limitations period usually is tolled
I. FACTS AND PROCEDURAL HISTORY
Plaintiff Candi Ottgen underwent two thumb surgeries performed by defendant Abdalmaijid Katranji, M.D. The first occurred on May 1, 2017, and the second on July 23, 2017. Plaintiff and her husband subsequently filed the present action on April 11, 2019, focusing their complaint on the first surgery. An AOM was not attached to the complaint as required by
The trial court held that Scarsella was inapplicable because the AOM here was completed when the original complaint was filed and had been inadvertently omitted from the filing. The trial court also permitted plaintiffs to file their late AOM and allowed it to relate back to the April 2019 complaint. The Court of Appeals reversed in an unpublished per curiam opinion, holding that Scarsella applied and that plaintiffs’ complaint was untimely with regard to the first surgery but was timely with regard to the July 23 surgery. Under Scarsella, it said, the April 2019 complaint was ineffective. Therefore, “there was nothing for the subsequently filed May 13, 2019 amended complaint to relate back to.” Because the dismissal was on statute-of-limitations grounds, the Court held that it was with prejudice.
Plaintiffs subsequently sought leave to appeal in this Court. We granted leave, asking the parties to “address whether Scarsella . . . was correctly decided and whether the plaintiffs’ complaint, which was filed without an affidavit of merit contrary to
“A trial court‘s decision on a motion for summary disposition is reviewed de novo.” Meyers v Rieck, 509 Mich 460, 468; 983 NW2d 747 (2022).
III. ANALYSIS
We must determine when a medical malpractice action commences, such that the running of the statutory limitations period is tolled. Specifically, does the requirement in
A. COMMENCEMENT OF AN ACTION, TOLLING, AND THE AOM
Our statutes clearly demarcate the starting point for an action in court: “A civil action is commenced by filing a complaint with the court.”
Except as otherwise provided in section 5838a or 5838b, an action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. [
MCL 600.5838(2) .]
As noted above, § 5805 establishes the general two-year limitations period, and § 5856(a) provides for tolling when the complaint is filed and served.2 The exceptions mentioned in § 5838(2) are similarly inapplicable. Section 5838b deals with legal malpractice. Section 5838a pertains to medical malpractice but is consistent with, and nearly identical to, § 5838(2); i.e., it provides that the general tolling provision applies to medical malpractice actions.3
Unfortunately, our caselaw has rejected this straightforward conclusion based on a statutory provision,
But we had already gone astray in Scarsella v Pollak, 461 Mich 547, 552; 607 NW2d 711 (2000), when we addressed the effect of the failure to file an AOM with the complaint. We relied heavily on the statute‘s use of the word “shall,” which we took to “indicate[] that an affidavit accompanying the complaint is mandatory and imperative.” Id. at 549. From this, we inferred “that, for statute of limitations purposes in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit.” Id. Accordingly, we adopted the Court of Appeals’ opinion holding that a medical malpractice action did not commence, and the
The problem with Scarsella‘s reasoning is not its conclusion that the AOM requirement is mandatory and must be followed. No one disputes this. Rather, Scarsella erred by concluding that because the AOM is mandatory, a case cannot commence without it and the statutory limitations period therefore cannot be tolled. Put differently, Scarsella appears premised on the mistaken belief that to have any meaning or effect, § 2912d‘s AOM requirement must relate to tolling. But allowing the limitations period to be tolled when the plaintiff omits the AOM “would not . . . vitiate the requirements of § 2912d(1): plaintiffs would still have to file the AOM and their claims might be dismissed when they failed to do so, just not on statute of limitations grounds.” Castro, 501 Mich at 886 (VIVIANO, J., concurring). The AOM requirement, in other words, remains mandatory and has effect even if tolling occurs. For that same reason, there is no need to resort to the interpretive principle that, where two statutes conflict, the specific statutory provisions trump more general provisions. Id. Section 2912d(1) does not conflict with § 1901, § 5856, or any of the other general provisions mentioned above—indeed, as noted, § 2912d(1) is silent about the limitations period and tolling.
The silence in § 2912d(1) is particularly meaningful here. That is because the Legislature has shown it “knows how to tweak the limitations period in the medical malpractice context,” but it did not do so for AOMs. Castro, 501 Mich at 887 (VIVIANO,
This Court has already adopted the essence of the reasoning above when addressing a similar question in Progress Mich v Attorney General. In that case, the plaintiff sued in the Court of Claims, where complaints must be signed and verified per
Progress Mich went on to reject the extension of Scarsella‘s logic, offering many of the same reasons described above. We noted, for example, that nothing in
To avoid this conclusion, defendants attempt to rely on the statutory context surrounding the AOM requirement, specifically the exceptions to that requirement. But these exceptions bolster, rather than weaken, our conclusion. Under § 2912d(2), “[u]pon motion of a party for good cause shown, the court . . . may grant the plaintiff or . . . the plaintiff‘s attorney an additional 28 days in which to file the affidavit . . . .” And per § 2912d(3), “[i]f the defendant in an action alleging medical malpractice fails to allow access to medical records within the time period set forth in section 2912b(6), the affidavit required under subsection (1) may be filed within 91 days after the filing of the complaint.” These exceptions show that a case indeed commences even when the AOM is not filed: if there were no case, then how would the party move for an extension under § 2912d(2) or obtain an extension under § 2912d(3)? There would be no action in which to file a motion
Defendants contend that our conclusion today would render the exceptions meaningless and, because we seek to avoid such interpretations, we must therefore uphold Scarsella. See generally People v Pinkney, 501 Mich 259, 283; 912 NW2d 535 (2018) (noting “that ‘[w]hen possible, we strive to avoid constructions that would render any part of the Legislature‘s work nugatory’ “) (citation and emphasis omitted). Defendants are mistaken. The exceptions in § 2912d provide a plaintiff two narrow avenues to obtain additional time to procure an AOM without the malpractice action being subject to dismissal for lack of an AOM. The exceptions are legally operative regardless of whether the statutory limitations period has been tolled.
Defendants next present a parade of horribles that is based on a misapprehension of our caselaw. If we overrule Scarsella, defendants warn, then a plaintiff‘s failure to file an AOM would lead only to dismissal without prejudice (as opposed to, under Scarsella, dismissal with prejudice for violation of the statute of limitations). A dismissal without prejudice allows a plaintiff to refile the case, assuming the limitations period has not otherwise expired. See Scarsella, 461 Mich at 551-552. Consequently, without Scarsella, when a complaint is filed without the AOM and the case is subsequently dismissed without prejudice, the limitations period would be tolled in the interim. As a result, a plaintiff who fails to file an AOM will arguably always, or almost always, have some time remaining after the dismissal without prejudice in which to refile his or her case. And, according to
Defendants’ argument depends on the proposition that dismissal for failure to file an AOM must be without prejudice and that a court is therefore powerless to prevent a serial filer from stretching out his or her case indefinitely. While we need not decide whether, and under what circumstances, dismissal with prejudice is appropriate, we take this opportunity to note that the caselaw relied on by defendants nowhere requires dismissals without prejudice or prohibits dismissals with prejudice. The key case, cited by both parties here, is Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26; 594 NW2d 455 (1999). There, we observed that the Court of Appeals had, in a previous case, declined to dismiss at all when the plaintiff filed the complaint without an AOM but served the complaint with the AOM. Id. at 47, discussing VandenBerg v VandenBerg, 231 Mich App 497; 586 NW2d 570 (1998). We distinguished the facts in VandenBerg from the situation in Dorris, where the AOM had never been filed. We then held that, “[u]nder these circumstances, . . . dismissal without prejudice would be an appropriate sanction for plaintiff‘s failure to comply with § 2912d.” Id. at 48 (emphasis added).
Dorris does not lay down a rule that dismissal without prejudice is always required for violations of the AOM requirement in § 2912d. The result in Dorris was expressly tied to the circumstances of that case. Moreover, Dorris did not mention or apply any of the
Moreover, even if dismissal without prejudice is often the appropriate remedy, defendants’ forebodings about the risk of serial refilings are ill-founded. As noted above, defendants warn that without the protection of Scarsella, plaintiffs will be able to file an action without an AOM, proceed through the dispositive motion stage, have their case dismissed without prejudice, and then refile again without an AOM, starting the whole process over, ad infinitum. Plaintiffs would undertake all this simply to buy extra time to acquire an AOM. Although we need not decide the question now, it is worth noting that in such circumstances—an intentional violation of § 2912d to create additional time for filing an AOM or otherwise improperly delay the proceedings—a trial court might opt to dismiss the case with prejudice. By contrast, an inadvertent or quickly rectified failure to attach an AOM might merit a lesser sanction. In any event, we cannot conclude that the Legislature was concerned about the possibility of such gamesmanship, since it failed to expressly link § 2912d‘s AOM requirement to tolling.
B. STARE DECISIS
Determining that the decision in Scarsella was erroneous is only the first step in the analysis. Before overruling it, we must also examine “whether the decision . . . defies ‘practical workability,’ whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision.” Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000). The first factor, “practical workability,” involves the reception of the decision by courts and parties and the ease of its application. Considerations that are relevant to this analysis include whether the decision been met with criticism, whether its application been contested or difficult, and, in the context of statutory interpretation, whether a reader of the underlying statute would be unable to rely on its plain meaning in light of the decision‘s departure from that meaning.6
With regard to criticism, the opinion in Scarsella, which did little more than adopt the Court of Appeals’ opinion in that case, was not joined by the full Court. Scarsella, 461
One obvious question that has arisen is whether, if no AOM is filed and no case commenced, defendants have any obligation to raise this noncompliance with § 2912d as an affirmative defense, as they are usually required to do with such defenses. See Tyra v Organ Procurement Agency of Mich, 498 Mich 68, 87-88; 869 NW2d 213 (2015), discussing Auslander v Chernick, 480 Mich 910 (2007). Relying on Scarsella, we answered in the negative. Auslander, 480 Mich at 910. The result, if followed, would create chaos: it would invite defendants to ignore lawsuits filed without an AOM, even if they were otherwise timely filed. If a default judgment is then entered against them, defendants could still prevail by attacking the lack of an AOM, at which point the limitations period might have expired and the plaintiffs would have no opportunity to cure the defect. See Tyra, 498 Mich at 105 (VIVIANO, J., dissenting), citing Saffian v Simmons, 267 Mich App 297, 307; 704 NW2d 722 (2005). Yet, marking the unworkability of such a system, it appears that defendants generally have disregarded Scarsella‘s invitation and instead “continue to follow the court rules and statutes by filing answers and affirmative defenses.” Tyra, 498 Mich at 106.
Next, we must consider reliance interests, which might be shared by certain individuals, groups, courts, other governmental institutions, or the public at large. Kozel, Stare Decisis as Judicial Doctrine, 67 Washington & Lee L Rev 411, 452 (2010). Scarsella involves a procedural rule pertaining to civil litigation between private plaintiffs. Thus, there is no apparent reliance by governmental institutions or the public at large. And while courts have relied on it, their reliance has been marked by struggles with applying the case, as discussed above.9
Finally, there have been no changes in the law or facts that weigh in favor of or against overruling Scarsella. Consequently, the stare decisis analysis leads to the conclusion that Scarsella must be overruled. It was wrongly decided, has proved difficult to apply and disruptive to our jurisprudence, and does not benefit from sufficient reliance interests.
IV. CONCLUSION
The general rule that for purposes of the statute of limitations, a case commences when a timely served complaint is filed applies to medical malpractice actions just as it
David F. Viviano
Elizabeth T. Clement
Brian K. Zahra
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
I agree with the Court‘s decision that “[f]iling an [affidavit of merit (AOM)] under
And this is precisely how the trial court acted under the court rules by exercising its discretion to permit plaintiffs to file their late AOM and allowing it to relate back to the April 2019 complaint. Here, the AOM was executed before the original complaint was filed and clearly had been inadvertently omitted when the complaint was filed. As trial
Although the Court overrules Scarsella, I would add that Scarsella reached the correct result in that case by affirming the trial court‘s decision denying the plaintiff‘s attempt to amend the AOM. Scarsella was concerned about gamesmanship following the then-recent adoption of medical malpractice reforms.5
In my view, the date on which the AOM is executed is highly telling in regard to the question whether a plaintiff has intentionally failed to comply with
The date of the AOM‘s execution itself provides the most significant evidence in deciding whether a plaintiff has intentionally violated
Last, while I agree with the Court that a stare decisis analysis supports the overruling of Scarsella, contrary to the Court, I believe that changes in the law weigh in favor of overruling Scarsella. In Kirkaldy, the Court relied on the presumption that a filed AOM is presumed valid to distinguish between cases in which an AOM had not been filed and those in which a defective, but presumably valid, AOM had been filed. Then, in Saffian, this Court held that
where an affidavit of merit is filed with a medical malpractice complaint, a defendant must timely answer or otherwise file some responsive pleading to the complaint, or else be subject to a default. A defendant‘s unilateral belief that the affidavit of merit does not conform to the requirements of
MCL 600.2912d does not constitute “good cause” for failing to respond timely to a medical malpractice complaint, and thus is not a proper basis to challenge the entry of a default.6
In keeping with Saffian, a defendant must answer a complaint. And if no AOM is attached to the complaint, a defendant must still answer the complaint and presume that a plaintiff is seeking an extension to file an AOM. In a very real way, Scarsella has now
[T]his rule advances the efficient administration of justice because to allow defendants to nitpick plaintiffs’ affidavits and, upon discovering an imperfection, to decline to answer surely leads, as it did here, to challenged default judgments and the hearings those entail. On the other hand, no such hearings are necessitated if the procedure is to require an answer and then a motion by the defendant to challenge the affidavit. This approach will conserve judicial resources and is advisable for that reason.8
Since I believe that the majority‘s opinion is consistent with the line of the above-mentioned cases maintaining a more orderly and efficient administration of justice, I concur with the Court‘s opinion.
Brian K. Zahra
BOLDEN, J., did not participate in the disposition of this case because the Court considered it before she assumed office.
Notes
An action involving a claim based on medical malpractice under circumstances described in subsection (2)(a) or (b) may be commenced at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. . . . A medical malpractice action that is not commenced within the time prescribed by this subsection is barred.
See Legion-London, 508 Mich at 1009-1010 (ZAHRA, J., dissenting).to determine unilaterally whether the plaintiff‘s affidavit of merit satisfies the requirements of
MCL 600.2912d . As the Court of Appeals majority pointed out in ruling for plaintiff, when an affidavit is filed, it is presumed valid. It is only in subsequent judicial proceedings that the presumption can be rebutted. As is evident, no such presumption arises when no affidavit is filed.
I was a member of the Court of Appeals panel in Saffian v Simmons, 267 Mich App 297; 704 NW2d 722 (2005), and I maintain my support for the panel‘s decision on the above point.
I partially concurred in the majority‘s opinion. I found unclear the factual basis on which “the trial court concluded that defendant fabricated his claim that the failure to transmit the summons and complaint to his insurer was the product of excusable clerical error,” and I would have “vacate[d] the default and remand[ed] for further factual findings on whether defendant had fabricated this claim.” Saffian, 267 Mich App at 310 (ZAHRA, J., concurring in part).
In regard to remedy, I posited:
If the trial court concludes that defendant fabricated the facts supporting his motion to set aside the default, the default judgment should be reinstated and the trial court should impose monetary sanctions against defendant pursuant to MCR 2.114(E). If, however, the trial court concludes that defendant‘s claim of excusable clerical error was not fabricated, the trial court abused its discretion by reinstating the default. The ensuing default judgment should
be set aside, and the trial court should rule on defendant‘s motion for summary disposition. [Id.]
I also dissented in part from that opinion. I maintain, as in Saffian, that “where there are allegations indicating that fraud has been committed on the court, it is generally an abuse of discretion for the court to decide the motion without first conducting an evidentiary hearing into the allegations.” Id. at 316 (ZAHRA, J., dissenting in part). As later discussed, gamesmanship does not appear to be a factor in this case.