A Complaint Filed without an Affidavit of Merit, but with a Motion for a 28-Day Extension is Timely even though the Motion was not Granted until after the Statute of Limitations had Expired

Sep 01, 2015

Saurbier

On August 20, 2015, in a 2-1 decision for publication, Judges Ronayne Krause and Cynthia Stevens (Kurtis Wilder, dissenting) of the Court of Appeals in Castro V James Goulet M.D. held that a medical malpractice suit filed without an Affidavit of Merit, was timely filed when Plaintiff’s motion for an extra 28 days to submit an Affidavit of Merit (AOM) was not granted until after the statue limitations had expired. The court reasoned:

Under 600.2912b (1), a person shall not commence an action alleging medical malpractice unless an NOI is provided not less than 182 days before the action is commenced. 600.2912d (1) requires that Plaintiff’s attorney “shall file with the complaint an affidavit of merit…” An exception to this rule is found in 600.2912d (2) stating:

(2) Upon motion of a party for good cause shown, the court in which the complaint is filed may grant the Plaintiff or, if the Plaintiff is represented by an attorney, the Plaintiffs attorney an additional 28 days in which to file an affidavit required under subsection (1).

In Castro, after the 182 days had run for the NOI, Plaintiff’s attorney filed the complaint within the two-year SOL period, and at the same time filed a motion to extend the time for filing an AOM. The AOM was filed within 28 days of the filing of the complaint, but The SOL ran before the motion was subsequently heard. The trial court had allowed the motion to be filed but then granted summary disposition because by the time of the court hearing the SOL had run. The Court of Appeals overturned this ruling, finding:

  • for good cause, the court may grant an additional 28 days to file an affidavit;
  • by statute and by precedent, the 28 day period must run from the date the complaint is filed, irrespective of when the motion is granted;
  • during this 28th day period the SOL will be tolled and a motion for failure to state a claim should not be granted;
  • Plaintiffs filed the complaint and motion within the two-year limitations and the AOM within 28 days thereafter;
  • Plaintiff does not control when the motion will be heard and should not be penalized if the motion is heard after the SOL has run;
  • the tolling period only runs from the date the complaint is filed and cannot resurrect a claim if the complaint itself was untimely.

The first criterion in 600.2912b is the finding of good cause. (There is no discussion in the case about why an AOM was not obtained within the 182 day NOI period, but could be filed within 28 days after the complaint was filed.) The jurist majority stated:

  • good cause is not defined in the statute;
  • the decision on good cause is highly discretionary;
  • the court found, according to the complaint, that the doctors performed a left hip arthroscopy, that there was no erectile dysfunction before surgery, but there was dysfunction afterward causing an inability to procreate. The alleged cause was negligent use of perineal traction causing excessive pressure for at least two hours being contrary to the standard of practice. Also Defendants failed to inform Plaintiff that this was a possible side effect and if they had done so Plaintiff would not have undergone the surgery. Additionally, Plaintiff would have filed the lawsuit earlier if medical professionals had not advised Plaintiff that erectile dysfunction would subside and then completely phase out weeks or months after the surgery. Plaintiff delayed filing suit because of Defendant physician’s assurances that the complications would end on their own.

The court majority, in its discretion, found this to be good cause.

In dissent, Judge Kurtis Wilder found:

  • In Scarsella v Pollak, a mere tendering of the complaint without the required affidavit of merit is insufficient to commence the lawsuit;
  • the alleged negligent act occurred 2/9/11 and the SOL would expire 2/9/13;
  • when Plaintiff filed a complaint 2/4/13, they did not file an AOM and the action did not commence on that date;
  • there is no dispute that Plaintiffs action was not commenced by 2/9/13 nor had the running of the SOL been tolled;
  • MCL 600.5805 (6) [SOL] & 600.2912d (2) must be read together as one and construed in a way that produces a harmonious whole;
  • Plaintiff should be required to obtain a court order granting an extension to file the AOM before the statue limitations expires such that the case is commenced before the statue limitation expires giving meaning to both statutes;
  • Plaintiff did not use the means available to prevent the expiration of the statue limitations, including not requesting an expedited hearing of their motion and failed to use reasonable efforts to request a trial court to suspend the normal time limits;
  • the trial court granted the motion 3/8/13 and Wilder disagrees with the majority that the granting of the motion operated retroactively to toll the running of the SOL;
  • Wilder, under Ligons v. Crittenden Hospital (2011) and Barlett v. North Ottawa Community Hospital (2001), concludes that the filing of the motion to extend time for filing the AOM had no tolling affect, the statue limitations ran 2/9/13 before the court granted the motion to extend and the trial court properly found that the 3/8/13 order had no tolling affect. Wilder would affirm the trial court.

Comments: It is currently unclear whether this decision will be appealed. As it is a published opinion, it will serve as precedent. The conclusion of “retrospective tolling” is subject to challenge. Also, to be taken into account in similar situations moving forward is the highly discretionary nature of what constitutes “good cause.”