MSC amends medmal pleading rules

Medical malpractice defendants must challenge a notice of intent to sue when they first respond to a plaintiff’s complaint under the Michigan Supreme Court’s amendment of MCR 2.112.

Challenges to affidavits of merit or affidavits of meritorious defense must be made within 63 days of service.

MCR 2.118 has been amended to provide that an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit.

The full text of the changes, which take effect May 1, are available in ADM File No. 2009-13.

The amendments were adopted on a 4-3 vote. Justices Maura D. Corrigan, Robert P. Young and Stephen J. Markman dissented.

The dissenting justices argued that the amended rules are inconsistent with Kirkaldy v. Rim, 478 Mich. 581 (2007), and that trial courts must now choose whether to follow Kirkaldy or apply the amended rules.

In a concurring statement, Chief Justice Marilyn Kelly responded

The claim is made that these court rule amendments are inconsistent with Kirkaldy v Rim and run afoul of the statute of limitations.

However, the amendments do not overrule that decision, nor are they inconsistent with the statute of limitations. Kirkaldy held that if an affidavit of merit is successfully challenged, the proper remedy is dismissal without prejudice.

The plaintiff is left with whatever time remains in the period of limitations to file a complaint with a conforming affidavit of merit.

Under our amended court rules, which are permissive in nature, affidavits of merit may be amended in accordance with MCL 600.2301 and relate back to the date of the original filing of the affidavit. …

Thus, the Legislature has made clear that, at a court’s discretion, amendment should be permitted in furtherance of justice or when a defect in the proceedings does not affect the substantial rights of the parties.

Our court rule amendments therefore reflect a balance between the remedy of dismissal without prejudice under Kirkaldy and leave to amend with relation back of the amended affidavits of merit.

If a court permits an amended affidavit of merit, MCR 2.118(D) applies. The amended affidavit of merit relates back.

If a court denies a request to amend a defective affidavit of merit, then Kirkaldy provides the appropriate course of action. The action is dismissed without prejudice.