*1
Hosp
v Crittenton
LIGONS v CRITTENTON HOSPITAL
(Calendar
3).
Argued January 19,
Docket No. 139978.
No. Decided
July
2011.
Dujuan Ligons,
personal representative
of the estate of Edris
brought
Ligons,
wrongful-death
medical
action
against
Hospital,
the Oakland Circuit Court
Crittenton
also
Center;
Hospital
Bauer,
known as Crittenton
Medical
David B.
M.D.;
practice group,
Emergency Group,
and Bauer’s
Rochester
gone
The
Hospital emergency
EC.
decedent had
to the Crittenton
room, complaining vomiting, diarrhea, chills,
of
and a
after
fever
colonoscopy.
emergency
recent
Bauer treated her in the
room.
hospital,
After
decedent refused
he
admitted to the
she was
dehydration, given antibiotics,
discharged
treated for
and
with
up
personal physician
day.
instructions
follow with her
the next
immediately
The decedent did so and was
sent back to the
room,
emergency
testing
where she was admitted. Further
and
exploratory surgery
revealed that
decedent had suffered a
perforated
days
colon. She never recovered and died several
later.
action,
Emergency
In the
Bauer and Rochester
moved
sum-
for
mary disposition, arguing
plaintiffs
notice of intent to sue
(NOI),
(AOMs)
NOI,
supplemental
and affidavits of merit
failed to
comply
governing
with the
statutes. Crittenton
concurred
court,
Schnelz, J.,
motion. The
Gene
denied the motion. The Court
Appeals
Emergency
denied Bauer and Rochester
leave to file an
interlocutory appeal.
granting
appeal,
In
lieu
leave to
Supreme Court
Appeals
remanded the case to
the Court
(2008).
granted.
consideration as on leave
held,'. retroactively may be of merit not A affidavit defective *2 amended, proper response affidavit of merit to a defective and the is dismissal. timely timely AOM to file a plaintiffs A failure file a or 1. to 600.2912d(l) gener- requirements MCL the of
AOMthat satisfies must without ally case. The dismissal be in dismissal of the results exist, grounds for such as the prejudice unless dismissal other timely filing period. of expiration The a defective of the limitations period complaint unless and the limitations AOM with the tolls timely filing of a finds the AOM defective. The until the court saving period. toll defective AOM cannot a provide any to statement of the 2. AOMs failed Plaintiffs by of care defendants the breach of the standard manner in which injury alleged, required proximate cause the was the of was 600.2912d(l)(d). simply the It was insufficient to state under MCL plaintiff manner in which to state the result when a breach. there was pro- pleadings, permits of 2.118 the amendment 3. MCR original the date of the the amendment relates back to vides that 2.110(A) the term pleading, certain circumstances. MCR defines Therefore, fit an “pleading,” not that definition. but an AOMdoes pleading been under the not a that could have amended AOMwas pending in effect when this case was the version of MCR 2.118 Further, permitting a deficient AOM amendment of trial court. directly to the would run counter statutes under MCR 2.118 actions, particularly MCL governing medical require purpose of is to certification the 600.2912d. statute’s case, beginning expert at of a and it claim an the merit of the plaintiff is provides time if the unable to two alternative frames complaint. comply file AOM the the mandate to an with with subsequent conflict with Allowing amendment of an AOM would legislative remedies. those any may 600.2301, Michigan amend 4. courts Under justice. pleading, proceeding of An process, for the furtherance or however, pleading, is a neither a attachment to Accordingly, proceeding process a under MCL 600.2301. nor may not be amended under the statute. deficient AOM 2.112(L) permit to amendment 5. was amended in 2010 MCR MCL 600.2301. MCR 2.118 and of an AOM accordance with provide an amendment of 2010 to MCR2.118 was amended in V LlGONS CRITTENTON HOSP original filing an AOM back the relates date of the However,plaintiff light affidavit. could amend not his AOMsin the 2010 amendments of the court rules because the amended given prospective effect, application were rules and retroactive prejudice the would amendments result in to defendants. Appeals correctly 6. The Court of dismissed case prejudice. Although filing timely with the of a defectiveAOMtolls period defective, until a limitations court finds the AOM an during saving period period filed AOM after limitations has expired nothing period tolls because the limitations has run and saving period may during not be tolled. Plaintiff suit filed saving period 600.5852, permits afforded him under MCL which personal representative of a decedent’s estate to commence any years authority at action time within two after letters are though period long issued even of limitations has run as as the years action commenced within three after limitations period case, expired. period has In this because limitations had already expired, period there was no left toll under MCL 600.5856(a) complaint. when filed the Affirmed. joined by Kelly, dissenting, Justice Cavanagh, Marilyn Justice applies would have held that MCL 600.2301 when contents of *3 an are AOM deficient and would have remanded the to the case trial court for consideration under MCL 600.2301. MCL 600.2912d(l)(d) only requires regarding alleged a statement the in practice manner which the breach of the standard of or care was proximate injury alleged heightened the cause of the in the ANOI. specificity required. level of in the contents of an AOM not But is assuming deficient, that the in AOMs case this were MCL apply alleged deficiency 600.2301 should to a allow cure of the part parcel an malpractice
because AOM is of a medical proceeding given that it must be filed with the permitting a amendment of defective AOM in would be the justice furtherance of and would not affect defendants’ substantial rights. dissenting, plaintiffs Justice would have held that Hathaway, were AOMs AOMs, not defective and that in with even cases defective provides MCL 600.2301 relief. Plaintiffs AOMs contained regarding required the statements under MCL causation 600.2912d(l)(d). Legislature incorporate The not chose into the language heightening required specificity. AOMstatute the level of Accordingly, statutory language, the under the manner in which practice the of of breach the standard or care the was injury may description. of the in cause be set forth a succinct In Additionally, with the NOI. AOM must be read concert the NOI, AOMs, case, plaintiffs set read with the when concert majority regarding causation. the statement forth only remedy by holding a AOM the for defective erred that further rejected Legislature specifically given dismissal that the mandatory it enacted the of dismissal clause when inclusion a 600.2301, disregard in the courts must defects statute. Under rights of unless are affected because contents an AOM substantial proceeding. And even an part is or when an AOM of action rights of a has defects that affect the substantial AOM content necessary party, for the a court allow amendment when should justice. furtherance of Negligence — — — Malpractice Merit 1. Affidavits of Failure Medical —Remedy. Satisfy Statutory Requirements timely malpractice plaintiffs of failure to file a affidavit
A medical statutory requirements generally that results merit satisfies case; prejudice be without of the dismissal must dismissal exist, expiration grounds for as the unless other dismissal such (MCL 600.2912d[l]). period the limitations Negligence — 2. Malpractice of Merit —Amendment. Medical —Affidavits may any process proceeding
A court amend or for furtherance malpractice justice, is but affidavit of merit in a medical case and, thus, may process proceeding not be amended neither nor (MCL 600.2301). as such Negligence — — — 3. Malpractice Require- of Merit Medical Affidavits ments. alleged malpractice injury
A statement caused statutory requirement satisfy insufficient to “the in a medical action state affidavit merit care the breach of the standard of manner which” (MCL600.2912d[l][d]). injury proximate cause was the Granzotto, Granzotto), (by EC. Mark Mark Turner, Turner), & EC. Matthew L. (by Turner Ligons. Dujuan Garbarino, Nauts, (by McKinney & EL.L.C.
Tanoury, *4 Comorski), for William A. and Anita David Tanoury EC. Emergency Group, Bauer and Rochester Fries, A. (by T. Mellon and David Mellon EC. James Kowalski), Medical Center. Hospital Crittenton Ligons Hosp v Crittenton Opinion of the Court are called upon question We answer ZAHRA, whether a medical suit must be dismissed (AOM) if a defective affidavit of merit filed after period saving both the limitations and the period cases, have We hold in such expired. dismissal with prejudice must because amend- allowing follow directly ment of the deficient would AOM conflict with statutory governing scheme medical mal- actions, the clear language rules, of the court precedent of this Court. we affirm Accordingly, the judgment of the Court of Appeals dismissing plaintiff’s with prejudice. case
I. FACTS AND PROCEDURAL HISTORY Edris Ligons underwent a colonoscopy January on 14, 2002, days and four later developed vomiting, diar- rhea, chills, and fever.1 January 22, 2002, On still suffering from those symptoms, Ligons to the went emergency at room defendant Crittenton Hospital, where she was treated by defendant Dr. David Bauer. An x-ray abdominal suggested possibility par- of a tial small-bowel obstruction. Ligons When refused to be admitted to the hospital, given antibiotics, she was treated for dehydration, and discharged with instruc- tions to up with treating follow her physician the next day. Ligons did so and was immediately sent to the room, emergency where she was admitted.
After testing extensive and the involvement of seven doctors, it was surgery determined that necessary. refused initially any surgery, eventually but agreed. Exploratory surgery performed 24, on January a perforated colon, revealed pelvic inflamed 1 The longer who physician is no performed colonoscopy party suit. *5 [July- 490 MICH 61 Opinion the of Court further
mass, exploratory surgery and an abscess. form liver had an advanced Ligons showed that hard and rocklike her liver had become and that failure been an alcoholic for more Ligons had appearance. with and from acute cirrhosis years than 30 suffered co- hepatitis, alcoholic ascites, pancreatitis, alcoholic coli, Re- polyps. colon diverticulosis agulopathy, these impossible colon because of moval of her the Ligons never recovered from preexisting conditions. January 29, died on 2002. surgery and personal representative appointed Plaintiff was 22, 2005, and to Ligón’s February on delivered estate (NOI) 8, intent to on June defendants a notice of sue2 2005, delivered a 21, supple- 2005. October On proximate regarding more detail providing mental NOI Oakland He filed the Circuit cause. 7, 2006, two AOMs. April accompanied by Court on AOM, 2005, 8, March was executed signed The first Sternbach, by George emergency-medicine spe- Dr. AOM contained 23 Although paragraphs cialist. the had the manner in which the standard of care regarding breached, only paragraphs pertained been two of those specifically to case: ajdmit patient hospital the failure to on [The
v. January 2002. appropriate o]btain failure consults on Janu- [The
w. ary 22, 2002. the manner which these breaches were
Regarding AOM proximate injury, provided, cause of imprudent cause of the acts “As direct by individuals identified committed omission herein, Ligons, Edris died.”
2 SeeMCL 600.2912b. Hosp v Crittenton
Opinion Court AOM, 17, 2005, The second signed on June Dr. Thomas, Fred did not the address standard of care, care, or the breach of the standard of the actions that should have been taken or omitted to with the comply Rather, standard of care. the Thomas only AOM addressed manner which the breach of the standard of practice or care was the proximate cause of the alleged injury: my “It is that had opinion admitted patient defendants to the on hospital *6 January 22, 2002, and obtained the con- appropriate 22, sults on January 2002, as outlined in Dr. Stern- affidavit!,] bach’s that Ligons Edris would not have died.”
In 2007, March Bauer and defendant Rochester (Bauer’s Emergency Group, EC. practice group) moved summary for disposition, arguing NOIs and AOMs did not with the comply governing statutes. 2007, In April Crittenton concurred in the motion. The trial court denied 22, defendants’ motions on May 2007.
Bauer Emergency and Rochester applied for leave to interlocutory file an appeal, which the Court of Appeals initially denied.3 Bauer and Rochester Emergency then applied appeal and, leave to in this Court in lieu of granting their we application, remanded the case to the Court of Appeals for consideration as on granted.4 leave The Court of Appeals granted later Crittenton’s appli- cation delayed for leave to file a cross-appeal.5 Court,
On remand from this
Appeals
Court of
concluded that plaintiffs
collectively
two NOIs
satisfied
3 Ligons
Hosp, unpublished
v Crittenton
Appeals,
order of the Court of
(Docket
278622).
January 16,
entered
No.
Ligons
Hosp,
v Crittenton
Recognizing
defective
dis-
Rim,10
Court
Kirkaldy
missal of the case under
v
had
further held that dismissal
this case
Appeals
that,
prejudice.11
Appeals
be with
Court
reasoned
and an AOM tolls the
although filing
*7
6
Ligons
Hosp,
337, 343-349;
v
App
Crittenton
Mich
361
285
776 NW2d
(2009).
7
600.2912d(1)(d); Ligons,
App
285 Mich
at 349-351. The Court of
Appeals partial
comply
dissent would have found the AOMs sufficient
600.2912d,
acknowledged
specify
did not
with MCL
but
AOMs
Ligons
appropriate
hospital
how the failure to admit
to the
and obtain the
22, 2002,
taking
January
Ligons’s death or how
these
consults on
caused
Ligons,
eight days
prevented
Mich
actions could have
her death
later.
285
J.,
dissenting
part).
App
concurring
part
(Fitzgerald,
at 360-361
8
Hosp
(majority
citing
Id. at 350
Roberts v Mecosta Co Gen
opinion),
(2004).
Remand),
(After
679,
16;
470 Mich
699 n
16 Id. at 355.
17 Id.
70
II. STANDARD OF REVIEW We de review novo a trial ruling court’s on a motion summary disposition.20 This case involves questions statutory interpretation, which we also review de novo.21We interpret court rules using the same prin- ciples govern the interpretation of statutes.22 Our goal when interpreting applying statutes court rules is give effect to the plain meaning of the text. If the text unambiguous, we apply language as written without construction or interpretation.23
III. ANALYSIS A. INTERPRETATION AND APPLICATION OF MCL 600.2912d MCL 600.2912d was enacted in 1986 amended in 1993 as an element of broad tort reforms established by
[18] Id. at 356.
[20]
Id.
[21]
[19]
Haynes Neshewat,
Ligons
v Crittenton
v
Hosp,
477 Mich
(a) applicable practice standard of or care.
(b) professional’s opinion The health applicable that the practice by standard of or care was breached the health professional facility receiving or health the notice.
(c) The actions that should have been taken or omitted by professional facility the health or health in order to have complied applicable practice with the standard of or care.
(d) The manner in which the breach of the standard of practice injury or care was the cause of the alleged [Emphasis in the notice. added.] 600.2912d(2) (3) MCL extend the time during which an may AOM be filed under certain circum- stances:
(2) Upon
party
good
shown,
motion
aof
cause
complaint
may grant
court in which the
plaintiff
is filed
or,
plaintiff
represented by
if the
attorney,
Pollak,
178;
78;
see Scarsella v
547, 548;
1986 PA
1993 PA
461 Mich
(2000); Solowy
Hosp Corp,
214, 228;
v Oakwood
plaintiffs attorney days in which to file an additional 28 required the affidavit under subsection (3) alleging medical mal- If the defendant in an action medical fails to allow access to records within 600.2912b(6)], period [MCL time set forth in the affidavit (1) may days required under subsection be filed within 91 filing complaint. after the Poliak,27 In Scarsella v Court addressed the con failure to file an AOM sequences with the statute. complaint We stressed “ ” Legislature’s ‘mandatory imperative’ language:28 600.2912d(1) requires that a “shall file with an affidavit of merit... .”29In light of this “ legislative held that requirement, we ‘for statute of *10 case, limitations in medical purposes malpractice tendering mere of a complaint without the affi ”30 of merit davit is insufficient to commence the lawsuit.’ rejected We the plaintiffs argument that he should have been permitted to amend his an complaint appending AOM, untimely which would have been related back to 2.118(D),31 the time the complaint was filed under MCR “ because such permitting amendment would have ‘ef fectively repealed] the statutory affidavit of merit requirement’ ”:32
27 Scarsella,
30 Scarsella,
Scarsella,
549,
quoting
App
amendment
relates
date
back
of the
if the
pleading
claim or defense asserted in the amended
arose out of the
conduct,
transaction,
forth,
attempted
or occurrence set
to be
forth,
original pleading.
set
in the
32 Scarsella,
Scarsella,
550,
quoting
App
“[M]edical could file complaints merit, their without an affidavit contra statutory requirement, vention of the court rule and the by supplementing filing and ‘amend’ with an affidavit This, course, completely at some later date. subverts the 600.2912d(1). requirement plaintiff of MCL .. complaint merit,’ ‘shall file with the an affidavit of as well legislative remedy 600.2912d(2)..., as the of MCL allow ing twenty-eight-day extension in instances where an ”[33] accompany affidavit cannot complaint. words,
In other that, Scarsella established when a plaintiff “wholly omits to file the affidavit required by 600.2912d(1),” “the filing ineffective, and does not tolling work a applicable period of limitation.”34 When the untolled period of limitations expires before the files a complaint accompanied by AOM, the case must be dismissed prejudice with on grounds.35 statute-of-limitations Dis missal without prejudice is proper, however, if the untolled period limitations yet has not expired.36
The issue whether a timely filed yet defective AOM tolled the limitations period was resolved in Kirkaldy. Kirkaldy that, observed under MCL 600.5856(a),37MCL 600.2912d, Scarsella, “the period of limitations is
33Scarsella,
Scarsella,
quoting
461 Mich at
App
at 65.
34Scarsella,
nom Dorris v Detroit
460 Mich
following circumstances:
(a)
complaint
filed,
At the
copy
time the
is
if a
of the summons
complaint
are served on the defendant within the time set
supreme
forth in the
court rules.
Thus,
an affidavit
if the defendant believes that
is
deficient,
challenge the affidavit. If
the defendant must
successful,
challenge
proper remedy
is dismissal
is
Scarsella,
prejudice.
[461 Mich] at 551-552. The
without
time remains in the
plaintiff would then have whatever
period
limitations
which to file a
within
merit.[41]
accompanied by conforming
a
affidavit
Waltz,
600.5856, by
In
this Court clarified that MCL
its
terms,
or statutes of
only periods
tolls
of limitations
A
neither a statute of limita-
repose.42 saving statute is
a
a hmitations
nor
statute of
providing
period
tions
rather, it
“an
to the statute of hmita-
repose;
‘exception
is
”
death
wrongful
tions’
that allows “commencement of
statute
many
years
applicable
action as
as three
after
words,
In other
once the
expired.”43
of limitations has
38 Kirkaldy,
42 Waltz,
Read
the cases
four points
establish
neces
sary
resolving
currently
First,
the case
before us.
timely
failure to file a
AOM or to file a
timely
AOM that
satisfies
the
of MCL
requirements
600.2912d(1)
in
generally results
the dismissal of the
Second,
case.44
prejudice
dismissal must be without
grounds
exist,
unless other
for the dismissal
such as the
expiration
Third,
of the limitations
period.45
timely
filing of a defective AOM with the
tolls
dissent,
Although Justice
discusses
in his
he
Bush
does not
CAVANAGH
why
inappropriate
given Kirkaldy’s holding
address
dismissal was
here
remedy
appropriate
that dismissal is the
for a defective AOM.
45Regardless
provision
“mandatory
of the fact that a
for
dismissal with
600.2912(d)
prejudice”
unnecessary in
because the statute of
dismissal,
proceeds
limitations necessitates
Justice
Hathaway’s
dissent
misguided
legislative
awith
and fruitless search for
direction that a
“mandatory
requires
prejudice.”
defective AOM
dismissal with
Unsur
mandate,
prisingly,
concluding
Legis
she finds no such
instead that the
rejected “mandatory
light
interpretation
lature
in
dismissal”
of its
of a
provision
Legislature
legislation
of the initial notice
never
adopted.
Although
Legislature
considering
“actions
various alterna-
language
statutory provisions
settling
language
tives
before
on the
actually
may
legitimate
legislative history,
enacted”
constitute a
form of
Question
Appeals
In re
the United States Court
Certified
from
Circuit,
5;
(2003),
Sixth
115 n
unknown information altered strikethrough/insert language proposed.] from format to show 490 MICH Opinion Court and until the court finds the period limitations unless Fourth, may be only periods AOM defective. limitations cannot toll a tolled; timely filing of a defective AOM saving period.46
B. THE AFFIDAVITSOF MERITWEREINSUFFICIENT
*13
600.2912d(1)
III(A),
noted in
sets
part
As
(1)
for affidavits of merit:
requirements
forth several
a certification that
the health
has re
professional
notice
all medical
supplied
viewed the
records
to
him
by
plaintiff’s attorney concerning
or her
(2)
allegations
notice,
contained in the
the applicable
issue,
following
On this same
Justice Markman observed the
in Bush:
matter,
entirely
As an initial
this seems
unrelated
statute
granted.
Legislature’s
of limitations under which dismissal is
rejection
provision
hardly
of an unrelated
can
be used to alter the
meaning
clear
conclude that the
aof
statute. It seems far more reasonable to
rejected
Legislature
provision
favor of
600.2912b(3)],
provides
[MCL
which
for similar treatment of the
subject
[Justice
same
matter: undiscovered claims.... How can
concerning legislative
draw an informed conclusion
Hathaway]
history
provision
considering
from a
never enacted without even
provision
actually
that has been enacted and
substituted for the
[Bush,
provision?
(Markman, J.,
never-enacted
dissenting).]
Plaintiffs failed provide any AOMs statement of the manner in which the breach of the standard of care was the proximate cause of the injury alleged. Dr. George Sternbach’s AOM provided only that “[a]s direct and imprudent cause of the acts omission committed the individuals identified herein, Ligons, Edris died.” Dr. Fred Thomas’s AOM *14 provided only: my “It is opinion that had the defendants admitted patient the hospital 22, the on January 2002, and obtained the appropriate January consults on 22, 2002, as outlined in Dr. Sternbach’s affidavit that Edris Ligons would not have died.”47We have often said that it is insufficient to simply state the result when required to state the manner in which there was a breach: The answer to “How was the standard of care breached?” is never “The standard of care was 47 Notably, any Dr. Thomas’s AOM did not include statements regarding applicable care, practice opinion the standard of or his that applicable practice by the standard of or care was breached the health professional notice, facility receiving or health or the actions that by professional should have been taken or omitted the health or health facility complied applicable in order to have with the standard of Therefore, practice regardless proximate or care. of his statement of cause, statutorily Dr. Thomas’s AOM was deficient. 61
78
490 MICH
Opinion of the Court
Similarly, answering
question
“How
breached.”48
injury?”
was the breach the
cause of the
proximate
In
requires
injury.”
more than “The breach caused
“
words,
alleged
other
‘mere correlation between
and an
insufficient
malpractice
injury
proxi-
to show
”49
conclusions,
Contrary
mate cause.’
to the dissents’
analysis
a
require
heightened
does not
level of
specificity; rather,
gives meaning
it
to the level of
simply
specificity required by
Legisla-
the statute itself. The
requires
just
ture
a statement not
that a breach caused
injury,
but the manner
which
breach caused
the injury.50
48
Roberts,
14;
Ctr,
Borgess
See
would he inconsistent with directive of MCL *15 practice “[t]he to state manner in which the breach of the standard of proximate injury alleged care was the cause of the in the notice.” Hosp v Crittenton Opinion op the Court case, In this Appeals even the Court of dissent acknowledged regarding that the AOMs were silent how Ligons’s defendants’ actions or inactions caused death. A answering statement how is precisely what 600.2912d(1)(d) MCL requires, and this case demon importance strates the of that requirement. Ligons’s (who perforated by colon was a doctor not a defendant here) eight days before she hospital. went She then refused to be admitted to the hospital, only to later, day come back a when the perforated colon was many discovered. With so different parties proce involved, dures as well as Ligons’s history, own medical state alleged negligence must how defendants’ diagnosing perforated day not colon one earlier was the cause of death. Plaintiff proximate Ligons’s so, required by 600.2912d(l)(d); failed to do MCL therefore, statutorily AOMs were deficient.51 A MAY A
C. PLAINTIFF
NOT AMEND DEFECTIVE AFFIDAVIT
OF MERIT
2.112,
Plaintiff nonetheless argues that MCR
MCR
2.118,
600.2301,
MCL
v Shabahang,52 permit
Bush
retroactive amendment of defective AOMs. We are not
added.)
(Emphasis
Merely stating
malpractice
that “the
caused the
explain
the manner in which death” does not
caused the
death.
Hathaway
argues
Justice
the statements
contained in the NOI
post
satisfy
requirements.
argument
can
the AOM
See
at 102-103. This
600.2912d(1)(d)
appreciate, however,
very clearly
fails to
that MCL
states
the AOM “shall contain a statement”
regarding
“[t]he
manner
which the breach of the standard of
or care was the
added.)
injury alleged
(Emphasis
cause of the
in the notice.”
It
not
does
statement;
state that either the NOI or the AOM shall contain
such
it
Therefore,
states that the AOM shall contain such a statement.
whether
question
the NOI contains such a statement
is irrelevant
to the
whether
600.2912d(1).
required by
the AOM contains the statements
52 Bush,
Plaintiff urges that amendment should be permitted under the version of MCR 2.118 in effect at the time this case was pending the trial court.54 MCR 2.118 governs amended and supplemental pleadings. Both the 2.118(A)(1) prior current versions of MCR permit a party to “amend a pleading once as a matter of course 14 days within after being served with a responsive 2.118(A)(2) pleading by an adverse . . . .”55 party MCR further provides “[e]xcept provided subrule (A)(1), party may a pleading amend a only by leave of the court or written consent of the adverse party. Leave shall be freely given justice when requires.” so 2.118(D), Former MCR which governed the relation amendments, back of provided, “An amendment adds a claim or a defense relates back to the date of the original if pleading the claim or defense asserted in the amended pleading conduct, transaction, arose out of the Hathaway’s Contrary post contention, 106-107, to Justice see at Kirkaldy significantly distinguishable is not from the instant case. Kirkaldy appropriate remedy held that for a defective AOM is dismissal. The fact that defects the affidavits of merit are not change appropriate remedy identical does not the fact that remains dismissal. opinion, As discussed later in this MCR 2.112 and MCR 2.118 were amended, 1, May effective 2010. 485 Mich cclxxv-cclxxvi one-time, ability may This automatic to revise be exercised “within days serving pleading require responsive after if it does not a 2.118(A)(1). pleading.” MCR Hosp v Crittenton Opinion of the Court forth, or forth, occurrence set to be set attempted the original pleading.”56 terms,
By its
former MCR 2.118 applied only to a
2.110(A)
MCR
“pleading.”
“pleading”
defines
for pur
poses of the Michigan Court
restrictively
Rules
(1)
(2)
(3)
include
a
“only:
complaint,
cross-claim,
a
(4)
(5)
counterclaim,
a third-party
complaint,
answer
cross-claim,
to a complaint,
counterclaim, or third-party
(6)
complaint,
reply to an answer. No other form
is allowed.”57
pleading
statutes,
As with
when a court
rule “specifically
term,
defines a given
that definition
*17
AOM,
alone
An
controls.”58
if required
even
to be
to a
appended
complaint, is not
in
included
this restric
tive definition
a “pleading.”
Plaintiff
heavily
relies
on
59
a statement
in Barnett v Hidalgo which described an
AOM “part
as
of the
pleadings”
determining that an
AOM is “generally admissible as an adoptive admis
But plaintiff
sion[.]”
fails to appreciate the
context
which the statement was made:
describing
document
“part”
when
pleadings
an
addressing
eviden
tiary issue does not turn the document into a pleading
2.118(D)
for purposes of MCR
if it does not meet the
2.110(A).60
definition MCR
Indeed, elsewhere Barnett
2.118(D) (version
1,
Former
January
MCR
through
effective
30, 2010,
April
[2010]).
[2000];
see
clearly referred to the AOM as distinct from the com- that plaint, stating AOMs “are accompany complaint. 2.110(A)(1), .. Id. at 160. Under MCR for purposes the court rules it is the itself “complaint” that constitutes a “pleading,” complaint not the any accompanying document it. Barnett neither held premise nor relied on the an pleading AOM is a purposes permitting of the rule plead- amendment of ings, MCR 2.118.
Plaintiff also argues opinion Court’s Scarsella compels conclusion that an AOM is a He pleading. stresses Scarsella Court’s holding that “ tendering ‘the mere of a complaint without the re- quired affidavit of merit is insufficient to commence the ”61 that, lawsuit.’ Then plaintiff notes pursuant to MCL 600.1901, which applies generally actions, to all civil “[a] civil action is by filing commenced a complaint with the court.” And he similarly notes that the general civil tolling Scarsella, statute cited in MCL 600.5856(a), permits tolling “[a]t the time the com- plaint is filed . .. .” Because Scarsella held that a medi- cal action is not tolling commenced —and does not occur —if the complaint is not accompanied by AOM, that, reasons for Scarsella to be consistent with MCL 600.1901 and 600.5856(a), *18 an AOM must be “part parcel” and of the complaint. Scarsella,
But Barnett, like did not rule that an AOM complaint is a or “part parcel” is of the complaint. Rather, the consistently Court referred the complaint to offering lawyer refrain from “evidence that the knows to be false.” Id. at 161; cxxix, supported logic, turn, see 488 Mich cxxxiii It not by characterizing pleading, an AOM as a but reference to other cases permitting third-party regard the introduction of affidavits —without to they pleadings adoptive whether were filed with the admissions. Id. —as at 161 n 4. 61Scarsella, 549, Scarsella, quoting App 461 Mich at Mich at 64. LlGONS V CRITTENTONHOSP Opinion of the Court and AOM as distinct documents. example, For “ Court noted that ‘medical malpractice plaintiffs must file more complaint; they than a file with “shall ”62 an complaint affidavit merit....”’ Importantly, Scarsella clarified that commencement of a medical malpractice action is not governed solely by general Rather, statutes to civil applicable suits. medical mal governed suits are in detail by specific statutes unique to this area of law. In generic contrast to the rule that a may civil action be commenced through mere 600.2912b(1) filing of a complaint, MCL establishes that, generally, “a person shall not commence an action alleging medical . malpractice person .. unless the has given the [defendants] written notice under this section not than 182 days less before the action comm is Similarly, held, enced.”63 pursuant Scarsella 600.2912d(1) MCL medical malpractice a claimant must just file not a complaint, but “shall file with the com of merit. A plaint defendant, affidavit .. .”64 more over, not simply required to file an answer to the file an complaint, but must also affidavit of meritorious defense —the counterpart AOM—within days after the files an plaintiff AOM.65 specific
These statutes governing malprac- medical actions, tice “appl[y] which to the more narrow realm of 62Scarsella, 549, quoting Scarsella, App 461 Mich at at 600.2912d(1) added). quoting (emphasis MCL Boodt, 562-563, plaintiff And see 481 Mich at which that a observed “cannot commence an action before he or she files a notice of intent that 600.2912b(4)]” contains all the [MCL information under that, so, subsequently if fails to do filed period affidavit of merit do not toll the of limitations. 64 Emphasis added. 600.2912e(1). answering, Instead of a medical unique option defendant also has a alternative to “file with the court an certifying involved, directly affidavit that he or she was not either 600.2912c(1). indirectly, alleged in the occurrence in the action.” MCL *19 490 Mich 61
84 Opinion of the Court circumstances,” general over the more rules prevail it Accordingly, to all civil actions.66 does not applicable that, necessarily plain- follow because other civil simply a an AOM may by filing complaint, tiffs commence suit is a and of a part parcel complaint— is—or for particularly purposes applying Michigan Court Rules.67
Permitting amendment of deficient AOM also runs
counter to the
medical mal
directly
governing
statutes
suits,
By
MCL 600.2912d.
its
practice
particularly
terms,
requires
plaintiff
MCL 600.2912d
that a
obtain
expert willing to review the medical records
qualified
certify
because,
the claim
merit
in the
has
expert’s opinion,
appli
each defendant breached the
care,
cable
there
actions
standard
were
the defendant
taken
should have
or omitted
order to
standard,
comply with the
and the breach was the
injury alleged
cause of the
in the presuit
Consistently
purpose
certify
notice.68
with its
to
merit
600.2912d(1)
case,
at the outset of the
MCL
directs that
file”
plaintiff
complaint.”
“shall
the AOM “with
mandate,
If the
plaintiff
comply
is unable
with this
the statute
for
MCL
provides two alternatives
recourse:
600.2912d(2) permits
grant
the court to
an additional
to file the
of a
days
“[u]pon
which
AOM
motion
600.2912d(3)
shown,”
party
good cause
Co,
601, 613;
Miller v
Ins
481 Mich
Allstate
Because permitting amendment of a defective AOM runs counter to the statutes, rules, established court governing cases law, this area of we hold that a plaintiff may not amend a deficient AOM under the version MCR 2.118 in effect during the pendency this suit in the trial court. v
2. MCL 600.2301 AND
BUSH SHABAHANG DO NOT AUTHORIZE
AMENDMENT OF AN AFFIDAVIT OF MERIT
Next, plaintiff urges that
permit
we
amendment of
deficient AOMs under MCL 600.2301 and this Court’s
Scarsella,
69 Compare
70Bush,
There statute force is no now in amend affidavits, ments to attachment and such amendments have never been deemed admissible [How Stat] under any provides which court in “the which action pending power process, shall be shall any have to amend pleading, action, proceeding in such in form or either substance, justice.[72] furtherance of The Bush Court’s of MCL application 600.2301 to a medical NOI rooted Legisla- in the ture’s 2004 600.5856(c), amendment of MCL the notice- tolling statute, and apply does not to AOMs. Unlike NOIs, which give defendants, notice to AOMs are meant out they to weed frivolous cases before are ever filed. Applying beyond Bush scope of 600.5856(c) amendment NOIs AOMs be an would unwarranted of its on the expansion focus statute, notice-tolling opinion would free the from its statutory moorings, would frustrate the purpose AOM requirement, unnecessary would create con- existing caselaw, flict with Kirkaldy, such as which Bush did not We apply overrule. therefore decline to rationale beyond statutory of Bush limited its focus.
3. THE NEW VERSIONS OF
2.112 AND
2.118
MCR
MCR
ARE NOT APPLICABLE
Finally, we address plaintiffs
argument
that he
should
permitted
now be
to amend
in light
his AOMs
the 2010 amendments of
2.112
MCR
2.118. In
MCR
*22
addition mandating
to
that a
party challenge
alleg-
edly defective AOM or
of
affidavit
defense
meritorious
2.112(L)(2)(b)
63 days
service,
within
of
MCR
now
[72]
Freer v
White,
[91]
Mich
74, 76;
states,
conditions
terms and
with the
in accordance
be amended
turn,
In
MCR
and MCL 600.2301.”
in MCR 2.118
forth
set
2.118(D)
“In a medical
states,
part,
in relevant
now
merit
an affidavit of
of
action, an amendment
date
back to the
defense relates
meritorious
affidavit of
16,
February
The
affidavit.”73
of the
original filing
unequivocally
the amendments
adopting
order
1, 2010,
May
long
effective
they became
stated that
filed
in this case were
the AOMs
after the
the case
resolved
and, indeed,
Appeals
after the Court
filed
to
appeal
for leave
application
plaintiffs
ordered
explicitly
this Court
Court.74Because
effect,
not
we will
prospective
have
amended rules
request. More-
retroactively
at
the rules
apply
application
retroactive
over,
argue, full
as defendants
result
stage and would
at this late
impossible
the rules is
back
defendants;
go
defendants cannot
to
in prejudice
that,
requirement
with the new
comply
time and
days
all,
must do so within
they
an AOM at
challenge
of the rules
application
retroactive
Accordingly,
of service.
ineffec-
to the AOMs
challenge
defendants’
render
would
argu-
their
to renew
opportunity
them no
tive and afford
motion
any
or to
deficiency
oppose
their
concerning
ments
discre-
amendment at the court’s
bring for
might
2.118(A)(2).
rule
A
court
newly adopted
under MCR
tion
acts, or
“party
if a
actions
applied
pending
not be
will
the party’s
rules and
act,
prior
in reliance on
fails to
rules
under the new
consequences
has
action or inaction
In other
under the old rules.”75
not present
that were
retroactively
apply
rules will not
words, amended court
at issue here.
amendments is not
substance
J., dissenting
part).
Ligons,
Opinion the Court newly if the compliance prescribed with time limits is impossible.76 apply We therefore decline the amended versions of 2.112 MCR and MCR 2.118 here.
D. DISMISSAL WITH WAS PREJUDICE REQUIRED Plaintiffs prejudice case was dismissed with because two-year statutory the period provided limitations 600.5805(6) MCL his medical action expired defective; before his AOMs were deemed there- fore, no tolling filing available to him his upon was 600.5856(a). complaint under MCL mal- alleged practice by January 22, defendants occurred on 2002. two-year Accordingly, limitations period expired on 22, January 2004. If the suit had been commenced January 22, 2004, before period limitations would have been tolled when the filed complaint was with the accompanying AOMs. But no suit was filed within the period, limitations so no tolling was available.
Instead, plaintiff filed suit within the saving period
600.5852,
afforded him under MCL
permits
which
personal
representative
of the decedent’s estate to
commence
within 2
any
years
action “at
time
after
letters of
are
authority
issued
although
period of
limitations has
long
run” as
as commencement
“within 3 years after the period of limitations has run.”
Plaintiff was appointed personal representative on Feb-
ruary 22, 2005.77He
January 22,
had until
2007—three
years
two-year
after
period
expired
limitations
on
22,
January
during
2004—in which to file suit
saving period. He filed his complaint and AOMs on
7,
April
Although
2006.
filed
during
suit
saving period, because the limitations
had ex-
period
Solosth v
See Pere
Marquette
R
Co,
66; 237
NW 554
Plaintiff
is the second
personal
representative
Ligons’s
estate.
pired, 600.5856(a) it though he filed the even when reasons, these For by AOMs. accompanied case correctly dismissed Appeals Court of prejudice. with
IV CONCLUSION *24 of language plain controlling to the and Pursuant 2.118, of MCR 2.110(A), applicable version MCR deci- 600.5856, 600.2912d, MCL and this Court’s MCL Waltz, that a Scarsella, hold Kirkaldy, we sions retroactively amended may AOM not be defective is dis- a defective AOM response proper a AOM filing of defective Although timely missal. AOM limitations a court finds the period until tolls saving period filed after defective, during AOM an nothing, has tolls period expired limitations may saving period has run and the period limitations case, period the limitations not be tolled. In this because filed, plaintiff cannot had run before retroactively. that the Given amend his defective AOMs had be saving expired, plaintiffs has case period judgment of the Court prejudice. dismissed with Appeals is affirmed. Mary JJ., C.J., and Markman Kelly, Beth
Young,
ZAHRA, J.
concurred with
from
I
dissent
respectfully
J. (dissenting).
CAVANAGH,
Appeals’
the Court of
decision to affirm
majority’s
In
with
dismissing plaintiffs
prejudice.
case
judgment
when the contents
my view,
apply
MCL 600.2301 should
(AOM)
deficient. Accord-
of merit
are
affidavit
to the trial court
I
remand this case
ingly, would
MCL 600.2301.
consideration under
LlGONS V CRITTENTON HOSP
Dissenting Opinion Cavanagh, Kelly’s
For the reasons
stated
Justice MARILYN
(After
Roberts v Mecosta Co Gen Hosp
Re-
dissent
mand),
(2004)
679, 702-714;
As the Roberts dissent explained, it is this Court’s duty to Legislature’s intent, determine the which be- with gins an examination language. statute’s Rob- erts, 470 Mich (MARILYN KELLY, J., at 705 dissenting). “Legislature Because the knows phrasing what to use when it require detail,” intends to extensive it note- worthy that the Legislature did not “explicitly mandate specificity” such in the AOM Id. at context. 709. Spe- cifically, statute, like the NOI MCL 600.2912d only requires a “statement” regarding alleged manner in *25 which the breach of the standard of or practice care was proximate the of cause the in injury alleged the notice.1 Thus, notes, as Justice HATHAWAY the AOM statute does
1 600.2912d(1) part: MCL states relevant plaintiff alleging or, [T]he malpractice in an action medical if represented by attorney, the shall health lieves plaintiffs attorney is an the signed by file with the an affidavit merit of a professional plaintiffs attorney reasonably who the be- requirements expert the meets [MCL for an witness under 600.2169], certify The affidavit of shall merit the health
professional has reviewed the notice and all medical records supplied by him plaintiffs attorney concerning or her the the allegations contained in the notice and shall contain a statement of following: each of the Dissenting Opinion by Mich Cavanagh, as level of heightened specificity, a require expressly not at 708-709 Roberts, 470 Mich statutes. See do other other J., dissenting) (examining stat- (MARILYN Kelly, “full” state- “detailed,” or “complete,” require utes that specific- made ments, “with require or that statements of AOM statute Further, the the ity”). purpose because medical claims to deter frivolous is valid, general that a claim is a certification requiring statute is required by of AOM assertion the items the claim’s credence to professional sufficient to lend likely to meet and thus is sufficient legitimacy Therefore, at intent. See id. 707-708. apparent statute’s high I HATHAWAY that a level of agree with Justice AOM not context. specificity is 2AOM in Nevertheless, arguendo that the assuming deficient, I that MCL 600.23013 this case was believe deficiency a cure apply alleged should to allow with, To MCL 600.2301 begin applying within the AOM. 600.2912d, not when latter conflict with would Indeed, recognized by read as a whole. Justice is provide expressly the AOM does not statute HATHAWAY, deficiencies within the contents of penalty time to And, notably, the allowances additional AOM. (d) The in which the breach of the standard of manner injury alleged in the notice. or care was the cause case, that, Although plaintiff I filed AOMs in this because believe two permit minimum, alleged defects in Dr. at a MCL 600.2301 would cured, singular. George I in the AOM be refer to AOM Sternbach’s will provides: MCL 600.2301 any proceeding pending, has The in which action or court any proceeding process, pleading power to or such action amend substance, proceeding, either in or for the furtherance of or form just, any judgment
justice, are time before on such terms as at every stage action at of the rendered therein. court disregard any proceedings proceeding or defect shall error rights parties. which do not affect substantial *26 LlGONS V CEITTENTON HOSP 93 Dissenting Opinion Cavanagh, J. 600.2912d(2) (3) an in file AOM MCL do not explicitly preclude amending disregarding defects 4 Instead, within the of an contents AOM. those provi merely sions provide plaintiff additional time in which and, thus, to file the initial AOM do not address curing an arguably defective AOM. And while I continue to Rim, adhere my in position Kirkaldy v 478 Mich (2007) 586-587; 734 NW2d (CAVANAGH, J., concur ring), as Justice suggests, allowing a defect HATHAWAY within an AOM to be cured under MCL 600.2301 would simply provide remedy an alternative to that of Kirkaldy, in the majority which opined that the remedy for a successful challenge to a deficient AOM is dis missal without at prejudice, id. (majority opinion). Accordingly, I believe that MCL 600.2301 should apply.5 ‘“
Notably, the aim of MCL 600.2301 is to “abolish technical errors in proceedings and to have cases dis- posed of as nearly as in possible accordance with the ’ ” substantial of the rights parties.” v Borgess Boodt Ctr, (2008) Med 558, 569; NW2d (CAVANAGH, J., dissenting), quoting Gratiot Lumber & provides, part: MCL 600.2912d in relevant (2) Upon party good shown, motion of cause the court may grant or,
which the plaintiff is filed if the represented by attorney, attorney an an days additional 28 required which to file the affidavit under subsection (3) alleging If the defendant in an action medical period fails to allow access to medical records within the time set 600.2912b(6)], [MCL forth in the affidavit under subsec- (1) may days tion filing be filed within 91 after the complaint. 5 disagree majority provides I with the Kirkaldy this case that remedy AOM, given my sole for a defective belief that MCL 600.2301 provides remedy posed by majority alternative to the one Kirkaldy, which, notably, did not cite applying or address the merits of MCL 600.2301. *27 61 490 Mich
94
by
Dissenting
Cavanagh,
Opinion
668-669;
16 NW2d
Lubinski,
v
309 Mich
Co
Coal
(1944).
And,
terms,
applies
MCL 600.2301
its
112
court, allowing
a
or
before
any
“proceeding”
“process”
time”
substance,
“any
in
or
at
amendment,
either form
See, also, Bush v Shaba-
judgment
is rendered.
before
(2009).
156, 176;
Also, permitting amendment of a defective AOM would be “for the justice,” furtherance of consistent with MCL Boodt, 600.2301. As I explained justice is furthered by applying MCL 600.2301 a case which *28 a statute operates as a “terminal trap” unwary for the here, when as litigation defendants seek to avoid aof potentially meritorious claim on the a basis of technical in defect an otherwise sufficient7 and filed timely AOM. Boodt, See 481 Mich at J., 569 dissenting). (CAVANAGH, Additionally, plaintiffs whole, when is a AOM read as the the contents of AOM do not utter evidence an lack of a good-faith to attempt comply proximate- with the 600.2912d(1)(d).8 causation requirement of MCL Ac if cordingly, even deficient, AOM were allow ing alleged defect to be cured under MCL 600.2301 would be in the furtherance of justice. Bush, See 484 atMich 180-181. 7 Notably, case, only in regarding the AOM’s statement the manner in which the of proximate breach standard care was injury cause of the at is issue. 8 Instead, that, comply the AOM this case indicated in order to with applicable care, standard should defendants have admitted the 22, 2002, hospital January to decedent on appro and obtained the priate that, on consultations that and a date direct omissions, cause of Compare, defendants’ acts and the decedent died.
Bush, 178, 43, (concluding at 180 n 182-183 that the defen one-page provided example dant’s blanket denial an aof failure to good-faith attempt a comply require demonstrate to with the content statute). ments of the NOI
96 Mich Dissenting Opinion by Cavanagh, substan- Further, I do not believe that defendants’ by permitting affected rights tial would be AOM. alleged plaintiff’s cure the defect 600.2301 to NOI, which Bush, Mich at 177-178. Unlike an See of a claim to a defendant aimed at notice providing is settlement, Roberts, 470 Mich at see promoting J., Bush, dissenting), 707-708 (MARILYN Kelly, of an AOM to purpose is Mich at Thus, a claim exists. because valid demonstrate in an details effort provide AOM is not intended promote claim and to impending notice of an give exists for settlement, justification likely a stronger an AOM to allowing a minor defect the contents of despite cured. a technical way, Stated another be AOM, a would be certainly defect defendant a professional of the fact that health-care apprised had plaintiff’s who reviewed the medical records claim, furthering there a valid believed a although intent the AOM statute. And defendant plaintiff’s complaint to file an answer to a is filed, AOM days within after an a defendant’s not on dependent affidavit of meritorious defense is of a AOM. See MCL plaintiff’s contents 600.2912b(7) a 600.2912e; (requiring cf. MCL defen- response plaintiff’s dant to submit written to a NOI).9 Thus, hastily I would not conclude that defen- *29 by permit- rights dant’s substantial would be affected 9 my view, any prejudice rights rings In claim of to defendants’ hollow statute, similarly requires case. the AOM the NOI statute this Like 600.2912b(4)(e). regarding proximate In this statement causation. MCL they case, unfairly legitimately be defendants cannot claim that would cured, by allowing given alleged prejudiced in the AOM to be defects plaintiff’s regarding proximate supple in the that statement causation by Appeals mental NOI deemed the Court defen sufficient plaintiffs supplemental were NOI filed dants served with before and AOM. LlGONS V CRITTENTON HOSP Dissenting Opinion by Hathaway, J. ting any alleged defects to cured be under MCL 600.2301.10
Accordingly, assuming even that the AOM arguendo case, was deficient this I because believe that can alleged pursuant 600.2301,1 defect be cured to MCL would remand this case the trial court for consideration under that statute.
Marilyn Kelly, J., concurred J. Cavanagh, with HATHAWAY, I (dissenting). from respectfully dissent the majority’s decision to dismiss medical mal plaintiffs practice action with prejudice. majority holds that (AOMs) defective, affidavits of merit were they be pursuant 600.2301, cannot amended to MCL that plaintiffs complaint must therefore be dismissed with prejudice. The majority’s conclusions are erroneous because plaintiffs AOMs were not defective and even in involving cases AOMs with defects, content MCL clearly 600.2301 provides Moreover, relief. lan plain guage statute, of the AOM 600.2912d(1), does not let contemplate, require, alone that a plaintiffs complaint be dismissed with prejudice for defects contained Thus, AOM. majority’s ignores decision plain language of the relevant statutes. The majority abandons the rule of law and reaches its result rewriting the applicable Accordingly, statutes. I dissent.
I. THE
OF THE AOM
REQUIREMENTS
STATUTE
At
issue whether plaintiffs AOMs met the require-
dissent,
respectfully
For the reasons stated in
disagree
I
with the
majority’s
permitting
conclusion that
a cure would affect defendants’
See,
rights.
also, Bush,
substantial
Further,
respect
98 by Opinion Dissenting Hathaway, To AOM statute. 600.2912(1(1), ments of MCL first examine issue, we must this correctly resolve determine its correct and of the AOM statute language statute, follow the we examining In interpretation. purpose statutory construction. rules of established effect to give and is to discern statutory construction so, look doing In we first Legislature.1 intent of the If a statute is of the statute.2 language actual to the enforced as written it must be unambiguous, clear Simply is allowed.3 construction judicial and no further render that would avoid a construction stated, we must are similarly, we nugatory,4 of the statute any part a interpret language add to statute “not free to sense of how this Court’s own on the basis of statute Further, a statute written.”5 have been statute should whole,6 and individual words while must be read as phrases are the words important, and phrases entire legislative the context of the read in should be scheme.7 statute, perti- 600.2912d, provides the AOM part:
nent
(1)
(2),
plaintiff in an action
Subject to subsection
or,
repre-
if the
alleging medical
attorney
attorney,
plaintiffs
shall file with
by
sented
signed by
merit
a health
complaint an affidavit of
attorney reasonably be-
professional who the
1
(2009),
397, 410;
citing
McLeary,
Sun
v
1
Potter
484 Mich
774 NW2d
(1999).
Ward,
236;
Valley
119
Foods Co v
Mich
596 NW2d
460
2 Potter,
Mich at 410.
484
3
Valley,
(b) professional’s opinion applicable The health that the practice by standard of or care was breached the health professional facility receiving or health the notice.
(c) The actions that should have been taken or omitted by professional facility the health or health in order to have complied applicable practice with standard of or care.
(d) manner in The which the breach of the standard of practice proximate injury or care cause of the alleged in the notice. majority
The the requirements focuses on of subdi- (d), vision which states that the AOM shall contain a “[t]he statement of manner in which the breach of the standard of care was the proximate cause the injury alleged in the notice.” In case, separate submitted two AOMs.8The majority holds that these AOMs were deficient they because “failed to provide any statement of the in manner which the breach of the standard of care was the proximate cause of the injury alleged.”9 This conclusion disingenuous is because the plaintiffs AOMs did contain statements containing Plaintiffs AOM a statement from Dr. Fred Thomas provided pertinent part my opinion “[i]t is that had the defen patient hospital January 22, 2002, dants admitted the on appropriate 22, 2002, January obtained the consults on outlined Dr. Sternhach’s affidavit that Edris would not have died.” Plaintiffs containing George provided AOM a statement from Dr. Sternbach pertinent part imprudent “[a]s a direct and cause of the herein, acts and omission committed the individuals identified Edris Ligons, died.” added). (emphasis Ante at 77 490 MICH
Dissenting Opinion by Hathaway, not just were The statements causation. regarding majority detail that exacting made to the level However, the majori- by the statute. required asserts is by MCL required of what ty’s interpretation 600.2912d, statute, is erroneous. the AOM mindful statute, AOM we must be analyzing
In many enacted stat- has Michigan Legislature that the certain facts or that a detail party utes requiring heightened levels of varying elements of a claim with phrase example, Legislature used specificity. For 333.17015(10), in MCL MCL “with specificity” 769.1a(8). 333.22231(4), “stating The phrase and MCL 38.416 and MCL was used MCL specifically” 500.8133(3). 38.14, in MCL Legislature mandated 408.1027(2)(b), MCL 125.1510(1), MCL MCL 600.6461(2) 462.319(l)(a), 600.557b(2), and MCL made; a “full “detailed be that a statement” *32 491.920(3), and 224.25, in MCL MCL MCL statement” 500.424(2); “complete a statement” MCL required 14.283(b) 462.2(2); a “full and required and MCL 324.51904, 247.172, MCL statement” MCL complete and MCL 390.758. incorporate any
The chose not to of these Legislature in the AOM specificity the level of phrases heightening Legislature incorporate If the had chosen statute. 600.2912d(1), then language in MCL qualifying such have a basis for its conclusion. majority might 600.2912d(1) However, concerning MCL is silent with the information specificity level of which conveyed. Nothing plain language in the AOM must be heightened speci mandates the level of this statute demands, and this Court is not ficity majority that the Thus, or to a statute. phrases free to add words a statement that the AOM “shall contain requirement Hosp v Crittenton Dissenting Opinion by Hathaway, following” simply says.10 of each of the means what it made, “a requires The statute statement” must be statement,” statement,” complete not “detailed “a “full explanatory statement.” Moreover, majority distorts the “manner” word 600.2912d(1)(d). majority opines as used in MCL that the word “manner” a detailed statement requires of “how” the breach caused the injury: simply often it
We have said that is insufficient state the result when to state the manner in which there a breach: The answer to “How was the standard of care breached?” is never “The standard of care was Similarly, answering question breached.” “How was injury requires breach the cause ?” more ”[12] injury. than “The breach caused the However, this conclusion is inconsistent with how the interpreted word “manner” has been in other statutes 28.258(12)(b), such as MCL 52.202(1), MCL and MCL 52.205. Our consistently courts have interpreted word “manner” as used relation to those as allowing statutes single for a description “homicide,” word such as “sui- cide,” or “accident.” In People Williams, v the Court of Appeals wrote: days
Over continually the next two Ashton’s condition deteriorated. Ashton died on autopsy November An 2003. revealed that cause death was loss of consciousness swelling. caused brain The Medical Examiner determined violently shaken, that Ashton had causing been his head to snap back and forth. The Medical Examiner concluded that the manner of death was homicide.13 600.2912d(1). *33 11 600.2912d(1)(d) states, “The manner in which the breach of the MCL injury alleged standard of or care was the cause of the added.) (Emphasis in the notice.” 12 (second added). Ante at 77-78 emphasis 13 People Williams, unpublished opinion per v curiam of the Court of (Docket Appeals, 29, 256123), p issued November 2005 No. 2.
102
490 Mich 61
Dissenting Opinion by Hathaway,
also,
Rozwood,
109, 115;
See
Maiden v
(1999) (“[T]he
NW2d 817
‘manner of death
”) (citation omitted);
accident.’
People Bailey,
v
(1996) (“
657, 664;
Mich
Moreover, majority’s ruling transforms an AOM into something that it is not. The AOM statute is one part larger of a statutory scheme for malpractice claims, and it must be read in the context of that larger legislative scheme. As set forth the clear language of 600.2912d(1), an AOM is designed only to act as certification that the claim is supported by the opinion *34 LlGONS HOSP V CRITTENTON by Dissenting Opinion Hathaway, J. qualified expert. plain- of a The statute states that the signed by tiff “shall file an ... affidavit ofmerit a health professional plaintiffs attorney reasonably who the be- requirements expert lieves meets the an witness .... certify The merit shall that the health affidavit of professional intent] [of has reviewed the notice . . . con- ,”14 cerning allegations the contained in the notice . . . Thus, an AOMis intended to function as a certification allegations that the contained within the notice of (NOI) intent are meritorious. An AOMis filed with the pleading. and is not the notice The NOI is the pleading. notice The AOM serves as certification that allegations only meritorious, the claim are and its filing unsupported By role is to deter the claims. failing entirety to read the AOM statute its and in the malpractice statutory major- context of the scheme, the ity simply misconstrues statute. majority compounds by focusing solely its error
on the statements AOM, made rather than reading the AOM concert with NOI, as contem- plated by requires the AOM statute. The AOM statute “[t]he certify that affidavit of merit shall that the health professional has reviewed the notice and all medical supplied by plaintiffs records to him or her attor- ney concerning allegations contained the no- by plain language, tice . .. .”15As evidenced this AOM is not a Rather, standalone document. it is to be requires read in concertwith the NOI. The statute expert certify review the NOI and that he or she supports allegations therein, contained and while the requires expert statute to make a statement on require expert causation, it does not that the repeat the contents of the NOI in the AOM. 600.2912d(l) added). (emphasis added). (emphasis Id. 490 Mich Dissenting Opinion Hathaway, MERIT
II. THE SUFFICIENCY OF PLAINTIFF’S AFFIDAVITS OF case, In set forth in detail the nature of NOI decedent, Li- the claim and how the Edris gons, pleadings, plaintiffs allegations died. From the relatively straightforward uncompli- to be appear alleged professional cated. The NOI and AOMs negligence during occurred a visit to defendant Critten- *35 room, Hospital’s emergency Ligons ton where was seen Bauer, defendant David Bruce M.D. Plaintiff claimed Ligons had suffered a of her perforation colon during recently performed colonoscopy and that she as a developed sepsis perforation. Ligons result of emergency treatment, went to the room for follow-up and claimed that Dr. Bauer failed admit her hospital proper diagnostic to the for the and testing treatment. Plaintiff further claimed that improper sepsis treatment allowed the to become overwhelming, leading multiple failure, organ causing Ligons’s death. The background NOI set forth the factual of plaintiffs claim: Ligons 54-year-old woman, history
Edris was a with a of polyps, atypical polyp previous colon with one found on a colonoscopy. Hospital She came to Crittenton for an out- patient follow-up 14, colonoscopy January on 2002. Dr. Tayeb during procedure very noted that the colon was pressure applied tortuous and had to be to reach the cecum. diagnosis The clinical was diverticulosis and hemorrhoids. January 22, Ligons presented On 2002 Mrs. to the Emergency Department four-day at Crittenton with a diarrhea, history vomiting, chills, and fever. She had a fever of 102.4. She had abdominal tenderness on examina- 15,400. [white count] tion. She had a blood cell An x-ray gas pattern abdominal showed abnormal with mildly paucity gas loops, dilated small bowel and or report bowel content the colon. The indicated that this early partial could reflect radi- bowel obstruction. The Hosp v Crittenton Dissenting Opinion-by Hathaway, ologist specifically progress recommended views. She was gastroenteritis treated for dehydration. given and She was discharged antibiotics and fluids. She was six within hours. Tayeb’s She went to Dr. officeon the 23rd due to severe pain. immediately She Emergency Depart- sent to the changes ment. Examination peri- revealed consistent with perforated tonitis because of a developed sepsis. colon. She Exploratory laparatomy pelvic revealed an extensive ab- scess, surgical and possible. resection Despite was not medication, sepsis extensive developed due to the perforated multiple organ colon led to failure and death on January 2002. supplemental
Plaintiffs NOI further stated: As direct and negligence result of the and malpractice alleged Ligons experienced above Edris con- pain suffering scious ultimately died due to the negligence. Specifically, patient had Dr. Bauer admitted the hospital January 22, to the on appropriate 2002 and had consults been including surgery [gastrointes- obtained progress tinal] and X-rays had patients been obtained the peritonitis [sic] diagnosed would have been much earlier. perforated] colon would have been detected and surgery performed would have been much earlier. This would overwhelming sepsis have avoided the that led to the *36 organ system multi ultimately failure and death.
The AOM signed by Dr. Fred Thomas certified that he had reviewed the NOI and all the medical records concerning the allegations contained in the notice and concluded, “It my is opinion that had the defendants admitted the patient to the on hospital January 22, 2002, and obtained the appropriate January consults on 22, 2002, as outlined in Dr. Sternbach’s affidavit that Ligons Edris would not have died.” The AOM signed by Dr. George Sternbach similarly certified his review and concluded, “As a direct proximate cause of the imprudent acts and omission by committed the indi- viduals herein, identified Ligons, Edris died.” Mich Dissenting by Opinion Hathaway, plaintiff would opine not on whether I do
While merits, folly it pure is ultimately on prevail the require do not meet statements suggest that these 600.2912d(1)(d). an erro To reach such ments of effectively ignores the conclusion, majority neous have colon would “per[forated] that statements performed have been surgery would been detected have avoided “[t]his would much earlier” organ system the multi sepsis that led to overwhelming further majority death.” The ultimately failure and he had certification that the Dr. Thomas’s ignores supporting and the medical that statement reviewed “had the defen his ignores opinion records and January to the on patient hospital admitted the dants on 2002, consults appropriate and obtained in Dr. affida 22, 2002, as outlined Sternbach’s January not have died.” vit that Edris would conclusion that the contents of majority’s The in the AOM is at odds with repeated NOI must be met the the statute. Plaintiffs AOMs plain language of 600.2912d(l)(d).16 AOMs, The of MCL requirements NOI, forth a “state- when read in concert with the set the breach of the “manner which regarding ment” care was the or standard more Nothing in the notice.” injury alleged cause of the Thus, were the statute. AOMs required by is not defective. AN AOM WITH III. DISMISSAL OF A CASE INVOLVING BY KIRKALDY REQUIRED
CONTENT DEFECTS IS NOT that if an AOM by holding further errs majority dis- defect, only possible remedy any contains he repetition repetitive; This is not to or that however, being suggest it is not repetitive imply renders parties the statute. AOM are not free defective. Parties engage may *37 Hosp v Crittenton Dissenting Opinion by Hathaway, J. missal under v Rim17 In Kirkaldy opining, so the majority expands the ruling Kirkaldy beyond well its legal facts and conclusion. In Kirkaldy, AOM was found to be defective it because was not signed by an who met the expert requirements of the statute, expert-witness MCL 600.2169. plaintiff Kirkaldy was not relief seeking from defect content. Instead, plaintiff sought ability replace an AOM, signed by unqualified an expert, entirely with an by new AOM signed qualified Thus, expert. Kirkaldy addressed the ability to substitute the original AOM for one signed by entirely an expert different witness. Nothing in Kirkaldy addressed an AOM containing purported Rather, defects content. at defect issue in Kirkaldy expert was that qualified was not support claim. Significantly, plaintiff Kirkaldy filed a second complaint by a accompanied signed by new AOM a qualified expert. The plaintiff requested that the original case be dismissed without prejudice so that pursue she could the second com plaint. This Court simply granted one of the avenues of requested relief when it dismissed the prejudice. case without
Kirkaldy decided the issue of filing whether original complaint tolled the period of limitations under MCL 600.5856, and this Court held that even an AOM signed by an unqualified tolls the expert period of limitations. did Kirkaldy not address whether alterna- dismissal, tive remedies short of such as amendment of AOM, were available under MCL Thus, 600.2301. it is erroneous to state that dismissal is the only remedy for an AOM with content defects because this Court did not address that issue in Kirkaldy.
17 Kirkaldy,
IV DISMISSAL OF AN AOM WITH CONTENT DEFECTS IS CONTRARY TO THE AOM STATUTE identifying The for the proper starting point required for content penalties available remedies AOMs with defects is the of the AOM statute itself. While language 600.2912d(1) that a not mandates shall commence an action for medical malpractice without timely filing AOM, an in the of nothing plain language of requires compels statute dismissal the case for defects in the AOM. the Despite majority’s contrary conclusion, the AOM statute makes no reference what mandatory soever to a in the penalty dismissal event of Instead, regarding a defect. the statute is silent an consequences filing AOM that contains content Thus, defects. mandatory we must determine whether prejudice dismissal with the intent the Legisla ture when it enacted MCL 600.2912d.
The legislative history of the AOM statute reveals Legislature did not intend for a defect an AOM to be grounds prejudice. dismissal with clearest indicator of this intent Legislature’s is the complete rejection “mandatory of a dismissal with prejudice” clause original contained draft of the legislation. The AOM originally statute was introduced part as of Senate Bill No. 270 on January 1993. (referred AOMs “certificate[s]” to as in SB 270 as introduced) § were addressed in proposed 2912d. Pro- § 2912d posed mandatory contained a dismissal penalty. The bill introduced as linked the NOI and the AOM together. It also provided for dismissal of claims without tolling 600.5856, the benefit of afforded in MCL which in essence would have resulted in a dismissal with prejudice. Section 2912d as introduced stated:
(1) person alleging A shall not commence an action complaint accompanied medical unless the is LlGONS V CRITTENTON HOSP Dissenting Opinion by Hathaway, J. by signed by or, person person the certificate if the represented attorney, by attorney reflecting person complied [concerning has with section 2912f NOIs], complaint accompanied by is not If certificate subsection, required under this does not toll 5856(1). provided the statute limitations as in section (2) Except provided subsection, as otherwise in this alleging malpractice, an action medical the court shall dismiss a claim not included the notice under [Emphasis added; section formatting altered from 2912f. strikethrough/insert language pro- format to show posed.]
Significantly, while AOMs and NOIs remained linked
in the version of the bill actually adopted, the penalty
*39
did
provisions
not
simply
survive. There
were not
sufficient
votes
the Legislature to enact a statute
with such harsh penalties. This unequivocally demon-
strates that mandatory dismissal was not the will of the
Legislature. Michigan law makes clear that “[w]here
Legislature
has considered certain language and
rejected it in favor
language,
of other
resulting
statutory language should not be held
explicitly
authorize what
Legislature
explicitly rejected.”18
Because the Legislature specifically omitted proposed
dismissal language from
bill,
the enrolled
it is unrea-
sonable to conclude that
Legislature
intended for
courts to reinsert dismissal as the only permissible
18In
Complaint,
396, 415;
re MCI Telecom
460 Mich
remedy. majority’s The interpretation phrase “shall contain a statement” as meaning “shall dismiss possible the case if there is a defect no matter how misguided.19 minor” is
V CONTENT MAYBE DEFECTS IN AN AOM CORRECTED However, AOMs this case were not defective. even in cases involving defects, AOMs with content party who files a defective AOM is entitled to seek relief. The first question is whether a plaintiff is entitled to relief under the former version of MCR 2.118. The majority claims that a pending whose case was while the former version of MCR 2.118 was in effect20is not entitled to relief under the former rule because an AOM is not a pleading. To reach this conclusion the majority disavows the holding Barnett v Hidalgo, 478 151, 161; Mich (2007), NW2d that an AOM is part pleading and, therefore, of a admissible as substan- tive evidence at trial because it constitutes an admis- sion a party opponent. However, majority now the claims that because Barnett held that an only AOM is Legislature It is ironic that refused to enact the most severe penalty, prejudice, complete AOM, dismissal with for a failure to file an yet here, majority adopts penalty purported this severe minor content defects. 16, February On this Court amended the court rules to make it 2.112(L)(2)(b) may clear Specifically, that AOMs be amended. MCR provides pertinent part amended now “[a]n affidavit of merit or may meritorious defense be amended in accordance with the terms and *40 majority’s conditions set forth in MCR 2.118 and MCL 600.2301.” The preclude general decision to use of the amended rules conflicts with the “ apply newly adopted rule that ‘the pending norm is to court rules to ” applying actions unless there is reason to continue the old rules.’ Co, Reitmeyer Equip Inc, App 332, 337; v Schultz & Parts Mich 237 602 (1999), quoting O’Brien, 495, 500; App NW2d 596 v Davis 152 Mich (1986); Jackson, People 390; NW2d 914 see also v 633 NW2d (2001); (5th Longhofer, Michigan ed), Court Rules Practice 1102.2, §§ pp 1102.1 and 3-4. LlGONS V CRITTENTONHOSP Dissenting Opinion Hathaway, “part pleadings,”21 of the an AOM is not a “pleading” subject to amendment under MCR 2.118. This distinc- best, tion is dubious at nothing former MCR 2.118 suggested stated or that a can pleading be amended but it part of cannot. Regardless of relief whether is available under the rule, former court the majority completely disregards MCL 600.2301. Once again, this Court must turn to the actual language of the statute. MCL 600.2301 contains two clear and unambiguous provisions: any
The court in which
proceeding
pending,
action or
power
any
has
process, pleading
to amend
proceeding
proceeding,
such action or
substance,
either in form or
justice,
the furtherance of
just,
on such terms
any
as are
at
judgment
time before
every
rendered therein. The court at
stage of the
proceeding
disregard
action or
any
shall
error
proceedings
or defect
in the
which do not affect
rights
parties.
substantial
plain
language
this statute imposes a duty
that cannot be ignored on all courts of this state. It
requires that
court
every stage
“[t]he
at
of the action or
proceeding shall disregard any error or defect in the
proceedings which do not affect the substantial rights of
parties.”
This is not a discretionary provision. It is
a legislative mandate that
this Court must
follow.
Unless substantial
rights
affected,
are
the court shall
disregard any error or defect at every stage of the action
or proceeding.
provision
This
applies to all actions or
proceedings. Thus,
if
even we were to
accept
ma-
jority’s erroneous conclusion that an AOM is not a
pleading, an AOM is
part
nevertheless
of the “action” or
“proceeding.” Clearly, repeat
failure to
statements
already made cannot be characterized as affecting a
substantial right. According to the plain language of the
statute, disregard Court must are in majority the claims such as ones so, a clear By failing majority ignores to do AOMs. this Court imposed and direct mandate on Legislature.
Moreover, in in which an AOM con- even instances rights more substantial defects or substantial tains affected, discretion be trial courts still have might by way MCL 600.2301 to afford relief of amend- under so MCL 600.2301 states justice requires. ment when any proceeding court in which action or is “[t]he any process, pleading to amend or pending, power has or either in form proceeding proceeding, such action substance, justice, the furtherance of on such or for just. clearly provides terms as are . . .” MCL 600.2301 just amendment of more than It allows pleadings. or “any process, pleading proceed- for amendments of An ing.” question part process AOM is without Thus, that courts an AOM is document proceeding. to amend. power have majority disregard claims it can lan- plain White, by asserting of MCL 600.2301 that Freer v
guage
74, 76;
(1892), represents
91 Mich
to attachment affidavits.23 Accordingly, not, Freer does majority claims, as the support ignore its decision to plain of MCL language 600.2301.
VI. WHEN COURTSSHOULD ALLOW OF AMENDMENT AN AOM *42 Next we must determine under what circumstances a court should allow amendment of an AOM with content affect defects that the substantial of the rights parties. allowing While an amendment discretionary matter, is a a court should view a party’s request to amend in light statutory directive that amendments should be in “the furtherance of justice, on such terms as are ,”24 just. . If failing . to allow amendment would result in the plaintiffs dismissal of a prejudice, case with as in majority case, holds the result would not be in the justice. furtherance of Such a result slams the courthouse face, doors leaving that plaintiff without a forum in which to a pursue claim that an has expert certified as meritorious.
Citizens of this state are entitled to a forum to resolve claims on their merits. justice Furtherance of curing Barber by favored defects in an affidavit amendment and held power irregularities “[t]his to by cure errors and amendment is a one, wisely exercised, useful if provision contrary when no to the is applies fully made it Barber, to attachment suits as to others.” 41 Mich at 144. The defect at issue in Barber “was not such a defect as to necessarily destroy process put and at once to an end to the proceeding, power but a defect remediable under the of the court to proceedings correct during progress.” errors in its their Id. at 145. Accordingly, proceeding Barber concluded that “in open, case the while stage permitting by amendment, and at a brought correction should be question collaterally, into competent reject it would not be to it as void on Id.-, Estate, account Crego’s of the defect.” see also Walden v (1939) 564; (holding statutorily NW 457 attachment may by affidavits that contain defects in content be corrected amend ment). 24MCL 600.2301. Mich 61 Dissenting Opinion Hathaway, citizens access to providing
cannot be achieved without of our justice system Access to is cornerstone justice. it, confidence in the and without jurisprudence, of an Allowing lost. for amendment AOM judiciary is correct defects in content the furtherance of permits plaintiff pursue Such relief his or justice. her claim and have it decided on its merits rather than reading misguided on a of an AOM or a hypertechnical reading of the AOM statute. law,
Unfortunately, following instead of the rule of majority denies the in this case access to justice by rewriting language of the AOM statute order to come to its result.
VII. CONCLUSION I from the respectfully majority’s dissent decision to dismiss this medical action prejudice. with majority’s are plain- conclusions erroneous because tiffs AOMs were not defective even cases involv- *43 ing defects, AOMs with content MCL 691.2301 clearly provides Moreover, relief. the plain language contemplate, AOM statute does not let alone require, that a be prejudice dismissed with majority’s defects contained an affidavit. The decision ignores plain language of the relevant majority statutes. The abandons the rule of law by rewriting reaches its result the applicable statutes.