VANSLEMBROUCK v HALPERIN
Docket No. 273551
Michigan Court of Appeals
Submitted November 6, 2007. Decided January 15, 2008.
277 MICH APP 558
Mаrkell Vanslembrouck, a minor, by and through her mother and next friend Kimberly A. Vanslembrouck, and Kimberly A. Vanslembrouck, individually, brought an action in the Oakland Circuit Court against Andrew Jay Halperin, M.D., and others, seeking damages for injuries sustained by Markell during her birth as a result of alleged medical malpractice. The court, Rudy J. Nichols, J., granted summary disposition in favor of the defendants, ruling that the affidavits of merit attached to the complaint failed to comply with the statutory requirements contained in
The Court of Appeals held:
1. The affidavits of merit met the requirements of the Uniform Recognition of Acknowledgements Act (URAA),
2. There are three alternative periods of limitations for a medical malpractice claim that accrues before a child reaches his or her eighth birthday. The action must be filed before the child‘s tenth birthday, or two years after the claim accrued, or six months after the child discovered or should have discovered the claim. The 10-year provision provided in
Reversed and remanded.
MURRAY, J., concurring, wrote separately to explain how the text of
1. NEGLIGENCE — MEDICAL MALPRACTICE — AFFIDAVITS OF MERIT — NOTARIZATION.
The method for authenticating out-of-state affidavits provided in
2. LIMITATION OF ACTIONS — MEDICAL MALPRACTICE.
The provision in
3. LIMITATION OF ACTIONS — MEDICAL MALPRACTICE — TOLLING OF LIMITATIONS PERIOD.
The limitations period for a medical malpractice action is tolled for 182 days once the plaintiff gives stаtutory notice of intent to file an action even if the plaintiff may have commenced the action 154 days after providing notice in a case where the defendant failed to provide a written response to the notice (
Plunkett Cooney (by Robert G. Kamenec and Kristen M. Netschke) for the defendants.
Before: SERVITTO, P.J., and SAWYER and MURRAY, JJ.
PER CURIAM. Plaintiffs appeal as of right the trial court‘s order granting summary disposition in defendants’ favor. Because, contrary to the determinations of the trial court, the affidavits of merit attached to plaintiffs’ compliant comply with statutory requirements and plaintiffs’ complaint was filed within the statutory limitations period, we reverse.
This medical malpractice action arose as a result of injuries sustained by plaintiff Markell Vanslembrouck during her birth and as a result of the birth process. According to the complaint, Markell was diagnosed with hypoxic-ischemic encephalopathy and cerebral palsy shortly after her birth. Plaintiffs contend that these medical conditions occurred as a result of defendants’ negligence. Defendants denied the allegations and thereafter moved for summary disposition, arguing that the affidavits of merit attached to plaintiffs’ complaint were legally insufficient and thаt
This Court reviews a trial court‘s grant or denial of summary disposition under MCR 2.116(C)(7) de novo. Tarlea v. Crabtree, 263 Mich. App. 80, 87; 687 N.W.2d 333 (2004). Summary disposition is appropriate under MCR 2.116(C)(7) if “[t]he claim is barred because of . . . statute of limitations. . . .” In reviewing a motion under MCR 2.116(C)(7), this Court “consider[s] all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” Fane v. Detroit Library Comm., 465 Mich. 68, 74; 631 N.W.2d 678 (2001). “Whether a claim is barred by a statute of limitations is a question of law that this Court reviews de novo.” Scherer v. Hellstrom, 270 Mich. App. 458, 461; 716 N.W.2d 307 (2006). This Court also reviews de novo questions of statutory interpretation and questions of law relating to the sufficiency of an affidavit of merit. See McElhaney v. Harper-Hutzel Hosp., 269 Mich. App. 488, 490 n 1; 711 N.W.2d 795 (2006).
On appeal, plaintiffs first contend that the out-of-state affidavits of merit submitted with their complaint complied with statutory requirements and thus could not serve as a basis for dismissing the complaint. We agree.
To commence a medical malpractice action, a plaintiff must file a complaint and an affidavit of merit. Young v. Sellers, 254 Mich. App. 447, 451; 657 N.W.2d 555 (2002). When a medical malpractice complaint is filed without an affidavit of merit, the complaint is ineffective and fails to toll the limitations period. Scarsella v. Pollak, 461 Mich. 547, 553; 607 N.W.2d 711 (2000).
[T]he plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff‘s attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff‘s attorney reasonably believes meets the requirements for an expert witness under [
MCL 600.2169 ]. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff‘s attоrney concerning the allegations contained in the notice and shall contain a statement of each of the following . . . .
An affidavit of merit must be “confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Holmes v. Michigan Capital Med. Ctr., 242 Mich. App. 703, 711; 620 N.W.2d 319 (2000).
Pursuant to
In cases where by law the affidavit of any person residing in another state of the United States, or in any foreign country, is required, or may be received in judicial proceedings in this state, to entitlе the same to be read, it must be authenticated as follows:
* * *
(4) If such affidavit be taken in any other of the United States or in any territory thereof, it may be taken before a commissioner duly appointed and commissioned by the governor of this state to take affidavits therein, or before any notary public or justice of the peace
authorized by the laws of such state to administer oaths therein. The signature of such notary public or justice of the peace, and the fact that at the time of the taking of such affidavit the person before whom the same wаs taken was such notary public or justice of the peace, shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court.
In the instant matter, plaintiffs attached affidavits of merit executed by Jeffrey Soffer, M.D., Patricia Romo, R.N., and Ronald Gabriel,1 M.D., to the complaint. Soffer, a board-certified obstetrician/gynecologist, executed his affidavit in the state of New Jersey. It bore the signature and seal of Francine Arthur, a New Jersey notary public. Arthur‘s signature was certified by Bradley Abela, the treasurer of New Jersey. Romo, a registered nurse, executed her affidavit in the state of Arizona. It bore the sign and seal of Dawn L. Carney, an Arizona notary public. Carney‘s signature was certified by Janice K. Brewer, Arizona‘s secretary of state.
Defendants successfully argued before the trial court that the affidavits of merit executed by Soffer and Romo failed to comply with
certificate signed by the clerk of any court of record in the county were the affidavit was executed. Therеfore, defendants claimed, because plaintiffs failed to attach a legally sufficient affidavit of merit to the complaint, the complaint was null and void. Our Supreme Court‘s recent decision in Apsey v. Mem. Hosp., 477 Mich. 120; 730 N.W.2d 695 (2007) (Apsey II), however, dictates otherwise.
In Apsey, the plaintiffs filed a medical malpractice action and attached to their complaint an affidavit of merit prepared in Pennsylvania, and containing the signature of a notary public from that state. A normal notarial seal appeared on the affidavit, but no other certification accompanied the seal. The trial court granted the defendants’ motion for summary disposition, ruling that the plaintiffs’ failure to provide further certification as required by
On appeal, a panel of this Court was required to decide whether, as argued by the plaintiffs,
The plaintiffs appealed in our Supreme Court, which was called upon to review the interplay between the URAA and
In
MCL 565.268 , the Legislature indicated how the URAA was meant to interact withMCL 600.2102 .MCL 565.268 provides:“A notarial act performed prior to the effective date of this act is not affected by this act. This act provides an additional method of proving notarial acts. Nothing in this act diminishes or invalidates the recognition accorded to notarial acts by other laws of this state.” [Id. at 129 (emphasis omitted).]
According to our Supreme Court, “[b]ecause the two methods are alternative and coequal, the URAA does not diminish or invalidate ‘the recognition accorded to notarial acts by other laws of this state.’
Here, the affidavit of merit executed by Soffer bears the signature and notary seal of a New Jersey notary public. The affidavit of merit executed by Romo bears the signature and notary seal of an Arizona notary public. An out-of-state notarial act performed by a notary public who is authorized to perform notarial acts has the same effect as if a Michigan notary public had performed the act.
The above conclusions do not, however, resolve this entire appeal. This is necessarily so, because defendants have presented an alternative argument that, even if the affidavits of merit are deemed sufficient, plaintiffs’ complaint was barred by the statute of limitations because the complaint was not timely filed. While defendants did not file a cross-appeal, this issue is properly before the Court because an appellee is not required to file a cross-appeal to urge an alternative ground for affirming the trial court‘s order. Middlebrooks v. Wayne Co., 446 Mich. 151, 166 n 41; 521 N.W.2d 774 (1994); In re Herbach Estate, 230 Mich. App. 276, 284; 583 N.W.2d 541 (1998). Accordingly, defendants, who raised this issue below and are seeking only to have the trial court‘s decision affirmеd (rather than to obtain a decision more favorable than was rendered by the lower court), were not required to file
Pursuant to
The goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Neal v. Wilkes, 470 Mich. 661, 665; 685 N.W.2d 648 (2004). The first criterion in ascertaining the intеnt of the Legislature is the language of the statute. Wickens v. Oakwood Healthcare Sys., 465 Mich. 53, 60; 631 N.W.2d 686 (2001).
If the language of the statute is clear and unambiguous, the Court must assume that the Legislature intended its plain meaning and enforce the statute as written. Id. Every word of the statute must be given meaning, and the Court should avoid a construction that would render any part of the statute surplusage or nugatory. Id.
[A]n action involving a claim based on medical malpractice may be commenced at any time within the applicable period prescribed in [
MCL 600.5805 ] or [MCL 600.5851 throughMCL 600.5856 ], or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. However, except as otherwise provided in [MCL 600.5851(7) or (8)], the claim shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim.
Except as otherwise provided in subsection (8),3 if, at the time a claim alleging medical malpractice accrues to a person under [
MCL 600.5838a ] the person has not reached his or her eighth birthday, a person shall not bring an action based оn the claim unless the action is commenced on or before the person‘s tenth birthday or within the period of limitations set forth in [MCL 600.5838a ], whichever is later. If, at the time a claim alleging medical malpractice accrues to a person under section 5838a, the person has reached his or her eighth birthday, he or she is subject to the period of limitations set forth in section 5838a.
According to defendants, the 10-year provision under
We find better guidance on this issue from our Supreme Court‘s decision in Miller v. Mercy Mem. Hosp., 466 Mich. 196; 644 N.W.2d 730 (2002). In Miller, the Supreme Court concluded that the six-month discovery provision in
The plain language of § 5838a(2) provides two distinct periods of limitation: two years after the accrual of the cause of action, and six months after the existence of the claim was or should have been discovered by the medical malpractice claimant.
MCL 600.5852 [] simply refers to “the” period of limitation. The provision does not limit or qualify which period of limitation applies, the two-year period of limitation rooted in § 5805(5), or the six-month discovery period found in § 5838a(2). As a saving statute, § 5852 applies to whatever period of limitation is or may be applicable in a given case, be it a professional malpractice claim or a breach of contract action. Indeed, . . . “[t]he period of limitation in a wrongful death action is governed by the statute of limitations applicable to the underlying claim.” As the trial court acknowledged in this case, the underlying claim here was a medical malpractice action brought under the six-month discovery period. Thus, it is
the latter period of limitation that the wrongful death saving statute incorporates here. Contrary to defendants’ assertions, the six-month discovery rule is a distinct period of limitation. It is a statutory provision that requires a person who has a cause of action to bring suit within a specified time. As an alternative to the other periods of limitation, it is itself a period of limitation. [Miller, supra, 466 Mich. at 202 (citation omitted).]
Following the Miller Court‘s logic, we believe that the 10-year provision of
Defendants’ contention that because they did not respond to plaintiffs’ November 10, 2005, notice of intent, plaintiffs were only entitled to a tolling period of 154 days, rather than a tolling period of 182 days, is also incorrect. A plаintiff may not commence a medical malpractice action without providing the notice required by
Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
Within 154 days after receipt of the notice, the health professional or health facility against whom the claim is made must furnish to the claimant a written response.
Pursuant to
The statutes of limitations or repose are tolled in any of the following circumstances:
* * *
(c) At the time notice is given in compliance with the applicable notiсe period under [
MCL 600.2912b ], if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.
In Omelenchuk, supra, the Supreme Court held that, once the required notice is given, the limitations period is tolled for 182 days even if the alleged negligent health professional or health facility fails to provide a written response and the claimant, pursuant to
Here, the notice of intent was filed on November 10, 2005. One hundred eighty-two days from November 10, 2005, is May 12, 2006. Because the period of limitations would have expired on December 1, 2005 (Markell‘s tenth birthday), the 10-year provision was tolled, beginning on November 10, 2005, for 182 days. Plaintiffs are also entitled to the number of days that remained in the 10-year period when they served the November 10, 2005, notice of intent — 21 days. Thus, when thе 182-day tolling period ended, plaintiffs were entitled to another 21 days before the claim for medical malpractice would be time-barred. Twenty-one days from May 11, 2006, was June 2, 2006. Plaintiffs filed their complaint on May 15, 2006. Accordingly, plaintiffs’ claim was not barred by the statute of limitations.
According to defendants, the Legislature‘s act of amending and recodifying the former
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
MURRAY, J. (concurring). The majority opinion correctly concludes that plaintiffs’ affidavits of merit were valid under Michigan statutory law. Apsey v. Mem. Hosp., 477 Mich. 120; 730 N.W.2d 695 (2007). It is also correct in holding that
Our Court has referred to
In Waltz v. Wyse, 469 Mich. 642, 650-651; 677 N.W.2d 813 (2004),1 the Supreme
If a person dies befоre the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run. [Emphasis supplied.]
The Waltz Court held that “[b]y its own terms, § 5852 is operational only within the context of the separate ‘period of limitations’ that would otherwise bar an
action. Section 5852 clearly provides that it is an exception tо the limitation period, allowing the commencement of a wrongful death action as many as three years after the applicable statute of limitations has expired.” Waltz, supra at 651 (emphasis in original).2
This Court has recognized that
[I]f the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. [
MCL 600.5851(1) (emphasis supplied).]
Except as otherwise provided in subsection (8), if, at the time a claim alleging medical malpractice accrues to a person under section 5838a the person has not reached his
or her eighth birthday, a person shall not bring an action based on the claim unless the action is commenced on or before the person‘s tenth birthday or within the period of limitations set forth in section 5838a, whichever is later. If, at the time a claim alleging medical malpractice accrues to a person under section 5838a, the person has reached his or her eighth birthday, he or she is subject to the period of limitations set forth in section 5838a. [Emphasis supplied.]
Compare Vega v. Lakeland Hospitals at Niles & St. Joseph, Inc., 479 Mich. 243, 249; 736 N.W.2d 561 (2007), where the Court recognized that the first part of
Thus, the plain language of
Finally, I agree with Judge HOEKSTRA that the elimination of the word “remaining” within former