MSC: Affidavit of merit not a pleading, can’t be amended retroactively

Since it was decided in 2009, the Michigan Supreme Court’s decision in Bush v. Shabahang has been used by the Court of Appeals to allow plaintiffs to fix several different types of defects in medical malpractice-specific pleadings.

But the court’s decision in Ligons v. Crittendon Hospital denied a plaintiff the opportunity to amend a defective affidavit of merit (AOM) and dismissing the case.

Writing for the majority, Justice Brian Zahra said the AOM isn’t a “pleading” under the court rules, so any rule allowing an amended “pleading” doesn’t apply.

An AOM, even if required to be appended to a complaint, is not included in this restrictive definition of a “pleading.” Plaintiff relies heavily on a statement in Barnett v Hidalgo, which described an AOM as “part of the pleadings” in determining that an AOM is “generally admissible as an adoptive admission[.]” But plaintiff fails to appreciate the context in which the statement was made: describing a document as “part” of the pleadings when addressing an evidentiary issue does not turn the document into a pleading for purposes of MCR 2.118(D) if it does not meet the definition in MCR 2.110(A).60 Indeed, elsewhere Barnett clearly referred to the AOM as distinct from the complaint, stating that AOMs “are required to accompany a complaint . . . .” Id. at 160. Under MCR 2.110(A)(1), for purposes of the court rules it is the “complaint” itself that constitutes a “pleading,” not the complaint and any document accompanying it. Barnett neither held nor relied on the premise that an AOM is a pleading for purposes of the rule permitting amendment of pleadings, MCR 2.118

Zahra also wrote that Bush doesn’t apply to AOMs either.

The Bush Court’s application of MCL 600.2301 to a medical malpractice NOI was rooted in the Legislature’s 2004 amendment of MCL 600.5856(c), the notice-tolling statute, and does not apply to AOMs. Unlike NOIs, which give notice to defendants, AOMs are meant to weed out frivolous cases before they are ever filed. Applying Bush beyond the scope of the 2004 amendment of MCL 600.5856(c) and NOIs to AOMs would be an unwarranted expansion of its focus on the notice-tolling statute, would free the opinion from its statutory moorings, would frustrate the purpose of the AOM requirement, and would create unnecessary conflict with existing caselaw, such as Kirkaldy, which Bush did not overrule. We therefore decline to apply the rationale of Bush beyond its limited statutory focus.

The majority said dismissal with prejudice is required in such circumstances.

Justice Michael Cavanagh dissented, arguing that the AOM in the case wasn’t defective because the statute doesn’t require specificity, and even if it was, the statutes don’t require that the case be dismissed with prejudice.

Nevertheless, assuming arguendo that the AOM in this case was deficient, I believe that MCL 600.23013 should apply to allow a cure of the alleged deficiency within the AOM. To begin with, applying MCL 600.2301 would not conflict with MCL 600.2912d, when the latter is read as a whole. Indeed, as recognized by Justice HATHAWAY, the AOM statute does not expressly provide a penalty for deficiencies within the contents of an AOM. And, notably, the allowances of additional time to file an AOM in MCL 600.2912d(2) and (3) do not explicitly preclude amending or disregarding defects within the contents of an AOM. Instead, those provisions merely provide a plaintiff additional time in which to file the initial AOM and, thus, do not address curing an arguably defective AOM. And while I continue to adhere to my position in Kirkaldy v Rim, 478 Mich 581, 586-587; 734 NW2d 201 (2007) (CAVANAGH, J., concurring), as Justice HATHAWAY suggests, allowing a defect within an AOM to be cured under MCL 600.2301 would simply provide an alternative remedy to that of Kirkaldy, in which the majority opined  that the remedy for a successful challenge to a deficient AOM is dismissal without prejudice, id. at 586 (majority opinion). Accordingly, I believe that MCL 600.2301 should apply.

Justice Diane Hathaway also argued that the statute doesn’t require the specificity the majority is requiring.

The Legislature chose not to incorporate any of these phrases heightening the level of specificity in the AOM statute. If the Legislature had chosen to incorporate such qualifying language in MCL 600.2912d(1), then the majority might have a basis for its conclusion. However, MCL 600.2912d(1) is silent concerning the level of specificity with which the information in an AOM must be conveyed. Nothing in the plain language of this statute mandates the heightened level of specificity that the majority demands, and this Court is not free to add words or phrases to a statute. Thus, the requirement that the AOM “shall contain a statement of each of the following” simply means what it says. The statute requires that “a statement” must be made, not a “detailed statement,” “a complete statement,” or a “full explanatory statement.”

One of the other two MSC decisions that are supposed to be out today, Driver v. Cardiovascular Clinic, will also deal with application of Bush v. Shabahang and Burton v. Reed City Hospital. Stay tuned.

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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.