In these consolidated medical malpractice cases, defendants appeal by leave granted from the trial court’s denial of their motions to set aside the entry of a default in each case. In each case, the trial court held that MCL 600.2912e mandated a default for defendants’ failure to timely file an affidavit of meritorious defense. We reverse and remand.
A trial court’s ruling on a motion to set aside an entry of default is reviewed by this Court for abuse of discretion.
Alken-Ziegler, Inc v Waterbury Headers Corp,
Both defendants argue that the entry of the default itself comprised a substantial defect or irregularity in the proceeding sufficient to show good cause. Defendants rely on the absence of a specific remedy in the statute and assert that becausе the courts are not expressly permitted to enter a default, they therefore are prohibited from so doing. However, an entry of a default does not create a defect in the proceedings regardless of the construction of the stаtute. If plaintiffs are correct and the statute
mandates
a default, then obviously defendants’ arguments fail. On the other hand, if the statute
prohibits
entry of a default, then the trial court made a mistake of law. In that case, the trial court’s mistaken belief that it had to enter a default is not a procedural error but a legal error. Likewise, if the statute neither mandates nor prohibits a default but allows the trial court discretion in fashioning a remedy, then the entry of a default is not a “substantial defect or irregularity in the proceeding”; rathеr, the court’s failure to exercise its power of discretion constitutes a clear abuse of discretion.
Komejan v Suburban Softball, Inc,
*160 Both dеfendants also argue that they had “reasonable excuses” for failing to file their affidavits on time. However, the trial court did not explore the matter because of its belief that it had no choice but to enter a default. While the record available to us may not appear to support “reasonable excuses,” the fact that the trial court denied the parties the opportunity to develop the record renders premature any conclusion on the subject.
The question, then, in these cases is whether the trial court erred in believing that it was required to enter a default in a medical malpractice case where the defendant failed to file an affidavit of meritorious defense within the time limit required by statute. We review a question of statutory interpretation de novo.
Wilhelm v Mustafa,
(1) In an action alleging medical malpractice, within 21 days after the plaintiff has filed an affidavit in compliance with section 2912d, the defendant shall file an answer to the complaint. Subject to subsection (2), the defendant or, if the defendant is represented by an attorney, the defendant’s attorney shall file, not later than 91 days after the plaintiff or the plaintiff’s attorney files the affidavit required under section 2912d, an affidavit of meritorious defense signed by a health professional who the defendant’s attorney reasonably believes meets the requirements for an expert witness under section 2169.
The only exception to the time limits in subsection 1 is given in subsection 2, which appliеs if the plaintiff fails to allow access to medical records as required under MCL 600.2912b(6); that exception does not apply in these cases. The use of the word “shall” indi *161 cates that the requirement of the statute is mandatory. Wilhelm, supra at 482. Therefore, a defendant violates the statute by failing to file an affidavit of meritоrious defense within ninety-one days of the plaintiff’s filing an affidavit of merit.
The next question is what sanction or remedy is appropriate for the violation. MCL 600.2912e is silent in regard to a sanction for noncompliance with the ninety-one-day time limit, and nothing in that statute expressly permits or forbids an extension of time, hi contrast, the statutory provision governing a plaintiff’s affidavit of merit, MCL 600.2912d, is silent concerning possible sanctions, but it expressly allows a plaintiff to have an additional twenty-eight days in which to file the affidavit of merit if goоd cause is shown. 1 The previous version of MCL 600.2912e, which was amended in 1993, 2 provided that the trial court could, in its discretion, strike the defendant’s answer and enter a default if the defendant failed to comply with the requirements of that section of the statute. Wilhelm, supra at 484. That рrovision was eliminated when the statute was amended in 1993; also eliminated was a provision allowing a defendant to extend time for good cause.
As our Supreme Court stated in
Sun Valley Foods Co v Ward,
The rules of statutory construction are well established. The foremost rule, and our primary task in construing a statute, is to discern and give effect to the intent of the Leg *162 islature. This task begins by examining the language of the statute itself. The words of a statute provide “the most reliable evidence of its intent. ...” If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent. [Citations omitted.]
See also
McKenzie v Auto Club Ins Ass’n,
The language of MCL 600.2912e unambiguously does not require or recommend any particular sanction. That does not mean, however, that no remedy is available. Where a statute creates a right or duty not found in the common law, the remеdies provided in the statute are exclusive unless they are plainly inadequate or where the act provides no adequate means of enforcement of its provisions.
General Aviation, Inc v Capital Region Airport Authority (On Remand),
In response to defendants’ arguments that the sanction provision eliminated by the 1993 amendment should be presumed to reflect a change in the intent of the Legislature,
People v Wright,
We next turn to the court rules to consider whether the trial court had the power to enter a default. MCR 2.603(A) authorizes the court to enter a default of a defendant who fails to “plead or otherwise defend” in an action. We note that this language encompasses more than a failure to answer. Defendants argue that filing of the affidavit of meritorious defense should not be considered “pleading or otherwise defending”; but the statutory timing of filing, the language of the court rule, and the purpose of the affidavits combine to convince us that both plaintiffs’ and defendants’ affidavits are part of the pleadings. MCR 2.112, which includes the requirement that in a medical malpractice case “each party must file an affidavit as provided in MCL 600.2912d, 600.2912e,” is entitled
“Pleading
Special Matters.” MCR 2.112(L) (emphasis added). The term “pleadings” includes only (1) a complaint, (2) a cross-claim, (3) a counterclaim, (4) a third-party complaint, (5) an answer to a complaint, cross-claim, counterclaim, or third-party complaint, and (6) a reply to an answer; thus, defendants’ affida
*164
vits are part of the answer. MCR 2.110(A). Without the affidavit, the answer is incomplete and does not conform with the rules; under MCR 2.115(B), the court may strike the answer and enter a default. In medical malpractice cases, the purpose of the affidavits is to identify valid claims and defenses meriting discovery. See
VandenBerg v VandenBerg,
Finally, we explore the appropriateness of entering a default in this case. This is an issue of first impression for this Court because the circumstances in each of the prior relevant medical malpractice cases were slightly, but significantly, different from the present case. In
Wilhelm, supra
at 485, where the defendant failed to timely file the affidavit, the trial court did
not
enter a default because the plaintiff waived the issue by not raising it until the day of trial. In
VandenBerg, supra,
the plaintiff filed the affidavit three months after filing the complaint, but served the defendants with both the complaint and the affidavit at the same time. This Court held that dismissal was not required by the statute and was not appropriate because the defendants suffered no prejudice. Similarly, in
Dorris v Detroit Osteopathic Hosp Corp,
Defendants argue that this case is analogous to VandenBerg, supra, and that dismissal without prejudice is appropriate. However, the defendants in a medical malpractice case are not in the same situation as the plaintiffs. First, they are not racing the statute of limitations clock; their interest in prolonging the suit is very different from the plaintiffs’ need to meet the statutory deadline. Second, the statutory provisions and language applying to the defendants is similar, but not identical, to that applying to the plaintiffs; for instance, the Lеgislature did not grant the defendants the right to extend the time allowed. Third, to permit the defendants to delay with impunity does nothing to encourage the parties to explore the merits of the case before trial. VandenBerg, supra at 502. The cooperation of both parties is necessary for the effeсtive development of the meritorious issues; the plaintiff is not the only party whose involvement is necessary to ascertain the validity of the allegations made. While the focus in the past has been on the intent of the Legislature to prevent plaintiffs from bringing frivolоus claims, the language of the statute is equally strict in requiring defendants to present a valid defense.
We therefore find that in each of these cases, although a default was a permissible remedy, the trial court erroneously believed that it was required by *166 statute to enter a default and that it had no disсretion to fashion any other appropriate sanction. Because the trial court did not exercise discretion in entering the default and did not consider the possibility of any other remedies, it erred in refusing to set aside the default. We reverse its оrders and remand for exploration of the issues of setting aside the defaults for good cause and what remedies should be ordered. We recognize that the trial court may ultimately find a default to be appropriate, but it may reach its conclusiоn only after exercising its own discretion in the matter. In selecting a sanction both appropriate and effective in compelling compliance with the statute, the trial court may consider the reasons for defendants’ delays, what other aсtions defendants took to apprise plaintiffs and the court of those reasons, any prejudice to plaintiffs resulting from the delays, and any other factors relevant to the determination.
Reversed and remanded. We do not retain jurisdiction.