Flaintiffs appeal as of right the February 19, 2010, trial court order granting defendants’ motion to strike plaintiffs’ affidavit of merit and dismissing plaintiffs’ complaint without prejudice in this action alleging medical malpractice. For the reasons set forth in this opinion, we reverse and remand for further proсeedings consistent with this opinion.
I. FACTS AND PROCEEDINGS BELOW
Plaintiff Sander Kalaj
Defendants moved to strike plaintiffs’ affidavit of merit on the basis that the x-rays Mirvis reviewed were not the Basha films and that without having reviewed the Basha films, it was impossible for Mirvis to opine that Khan misinterpreted them. Therefore, defendants asserted, Mirvis’s affidavit lacked the appropriate foundation for any opinion that Khan was professionally negligent in failing to diagnose plaintiffs cervical spine fracture on July 31, 2006. Plaintiffs asserted in rеsponse that there were sufficient records available that Mirvis had reviewed. Plaintiffs contended that these records provided adequate foundation for Mirvis’s affidavit of merit even in the absence of the Basha films. More specifically, plaintiffs argued that considering the nature of the injury and the progression of plaintiffs symptoms, the subsequent films taken of plaintiffs neck in close temporal proximity to the Basha films — which clearly demonstrate a C5 fracture— provide sufficient basis for Mirvis’s opinion that defendants were professionally negligent by fading to diagnose plaintiffs fracture. After a brief hearing, the trial court granted defendants’ motion to strike and dismissed plaintiffs’ complaint without prejudice, finding that without the opportunity to review the Basha films, testimony by Mirvis that defendants were professionally negligent by failing to diagnose the fracture would be “pure speculation” and “[w]e can’t have a jury guess.”
Plaintiffs moved for reconsideration, again asserting that given their temporal proximity to the Basha films, the subsequent x-rays, MRI, and CT scan of plaintiff s neck showed sufficient evidence of a fracture to provide an adequate foundation for Mirvis’s affidavit, especially in the context of the nature, and worsening, of plaintiffs symptoms in the relevant time frame. In support of their motion, plaintiffs provided the trial court with an affidavit from Mirvis averring that he did not need to review the Basha films to determine that Khan had been negligent by failing to diagnose plaintiffs cervical fracture and that in light of plaintiffs symptoms and the medical records supplied to him, he could
II. ANALYSIS
Plaintiffs argue on appeal that the trial court erred by striking the affidavit of merit and dismissing their complaint becausе while Mirvis might not have reviewed the Basha films as originally believed, his affidavit of merit meets the requirements of MCL 600.2912d. Plaintiffs assert that, under the circumstances presented in this case, Mirvis reviewed sufficient records to provide an adequate foundation for the opinions expressed in his affidavit. Plaintiffs note that Mirvis explicitly stated in his revised affidavit that the absence of the Basha films did not change his opinion with regard to Khan’s deficient treatment of plaintiff. Plaintiffs further assert that the fact that Mirvis did not have the opportunity to review the missing Basha films goes to the weight and credibility, and not the аdmissibility, of his testimony.
This Court reviews for an abuse of discretion a trial court’s decision to grant a motion to strike an affidavit. Brown v Hayes,
the paramount rule is that we must effect the intent of the Legislature. Statutory language is read according to its ordinary and generally accepted meaning. If the statute’s language is plain and unambiguous, we assume the Legislature intended its plain meaning; therefore, we enforce the statute as written and follow the plain meaning of the statutory language. [Id,.]
As our Supreme Court explained in Ligons v Crittenton Hosp,
the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiffs attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiffs attorney reasonably believes meets the requirements for an expert witness under [MCL 600.2169]. The affidavit of merit shall certify that thе 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 and shall contain a statement of each of the following:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard of praсtice or care was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice. [Emphasis added.]
“The failure to include any of the required information renders the affidavit of merit insufficient.” Ligons,
The parties do not dispute that plaintiffs’ counsel reasonably believed Mirvis to be qualified as an expert witness. Nor is there any dispute that Mirvis reviewed the notice of intent and all medical records supplied to him by plaintiffs counsel. Furthermore, his affidavit of merit includes all the statutorily required elements listed in MCL 600.2912d(a) through (d). Indeed, defendants do not assert, and the trial court did not find, that Mirvis’s affidavit fails to meet any of the statutorily required elements for a valid affidavit of merit. Rather, defendants assert, and the trial court essentially concluded, that the otherwise valid affidavit of merit must be disregarded because Mirvis mistakenly believed he had reviewed the Basha films. However, by its plain language, MCL 600.2912d(l) requires only “that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff s attorney concerning the allegаtions contained in the notice.” There is no specific requirement concerning which hospital or medical provider’s records must have been reviewed in order for the expert to ascertain a breach of the standard of care. Nor does the statute require that the health professional even identify the medical records he or she has reviewed. It is sufficient, under the plain language of the statute, for the expert to indicate that he or she has reviewed the records provided by the plaintiffs counsel and that in' light of those records, the еxpert is willing and able to opine with respect to the defendant’s negligence consistently with the elements set forth in the statute. Thus, Mirvis was not required to review the Basha films at all; that he mistakenly identified films provided to him as being the Basha films likewise does not render the affidavit of merit deficient undеr the statute unless the absence of those films precludes him from opining that defendants breached the applicable standard of care by failing to diagnose plaintiffs spinal fracture on July 31, 2006. In that case, it would be up to Mirvis to indicate that his opinion, as set forth in the affidavit of merit, was no longer supported. He has not done so. Instead Mirvis continues to aver that, even absent a review of the missing Basha films, it is his professional opinion that defendants breached the standard of care in their treatment of plaintiff. Nothing more is required at this initial stage of litigation. MCL 600.2912d.
The trial court dismissed plaintiffs’ action on the basis that, absent the Basha films, any testimony offered by Mirvis would be “pure speculation.” Such an assertion by the trial court was itself speculation concerning the evidence that would be disclosed during discovery and presented by plaintiffs at trial. Undеr the plain language of MCL 600.2912d, whether the assertions in the affidavit of merit are ultimately proved to be true is not at issue when evaluating whether the affidavit complies with MCL 600.2912d. Rather, at issue is whether, on its face, the affidavit of merit complies with the requirements set
Moreover, it is not true, as a matter of law, that plaintiffs cannot establish that Khan was negligent in his treatment of plaintiff without the Basha films. From the presence and progression of plaintiffs symptoms and the allegedly plainly evident fracture on films taken a mere eight days after Khan intеrpreted the Basha films, Mirvis can opine that defendants breached the standard of care by failing to diagnose plaintiffs cervical fracture on July 31, 2006. To establish a cause of action for medical malpractice, a plaintiff must establish four elements: (1) the appropriate standard of care governing the defendant’s conduct at the time of the purported negligence, (2) that the defendant breached that standard of care, (3) that the plaintiff was injured, and (4) that the plaintiffs injuries were the proximate result of the defendant’s breach of the аpplicable standard of care. Craig v Oakwood Hosp,
The trial court committed legal error when it misconstrued the requirements set forth in MCL 600.2912d. Accordingly, an abuse of discretion occurred. See Jackson,
Notes
From this point onward, Sander Kalaj will be referred to simply as “plaintiff,” while both named plaintiffs will he referred to jointly as “plaintiffs.”
Mirvis’s reference to “8.31.06,” appears to be a typographical error; the date intended by Mirvis was July 31, 2006.
It appears from the reсord that the films Mirvis reviewed were produced in response to plaintiffs’ request for a copy of plaintiffs medical records and that they were received in a Basha Diagnostics envelope. Plaintiffs state in their brief to this Court that these films are the films taken by plaintiffs chiropractor on August 8, 2006. Defendants do not suggest otherwise.