MSC mulls time limits for medmal pleadings

The Michigan Supreme Court is considering limitations periods for certain pleadings in medical malpractice cases.

Under proposed amendments to MCR 2.112 and 2.118, there would be time limits in which to challenge affidavits of merit and meritorious defense, and notices of intent to sue.

The key language from the proposed amendment of MCR 2.112 Pleading Special Matters:

(L) Medical Malpractice Actions.

(2) In a medical malpractice action, unless the court allows a later challenge for good cause:

(a) all challenges to a notice of intent to sue must be made at the time the defendant files its first response to the complaint, whether by answer or motion, and

(b) all challenges to an affidavit of merit or affidavit of meritorious defense, including the qualifications of the signer, must be made within 63 days of service of the affidavit on the opposing party. If the court finds that the affidavit is insufficient, it shall afford the party that filed the challenged affidavit to file a revised affidavit unless the information before the court shows that amendment would
not be justified. See MCR 2.116(I)(5).

MCR 2.118 Amended and Supplemental Pleadings would also be amended. The proposed added language is in italics:

(D) Relation Back of Amendments. An amendment that adds a claim or defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading. In a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of original filing of the affidavit.

The staff comment accompanying the proposal states:

The proposal also would allow amendment when an affidavit is found to be insufficient unless such amendment would be unjustified, and would explicitly state that the amended affidavit of merit or meritorious defense relates back to the date of the affidavit’s original filing.

Send your comments to Supreme Court Clerk Corbin Davis in writing or electronically by Sept. 1, 2009.
Box 30052, Lansing, MI 48909

Post a copy here at The Michigan Lawyer while you’re at it.