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Putnam v. Sezgin12/2/2004
NW2d 550 (2002). In this case, even if plaintiffs reasonably believed that the affiant was qualified to testify for plaintiffs, the affidavit of merit failed to include the requisite information concerning the allegations against Doctors Hospital. MCL 600.2912d.
We additionally conclude that the affidavit filed by plaintiffs was wholly insufficient to commence any medical malpractice action against any of the defendants, including Dr. Sezgin and his professional corporation. Dr. Sezgin was a neurosurgeon. The affidavit of merit was signed by Dr. Theodore G. Zaleski, a board-certified orthopedic surgeon. MCL 600.2912 requires that the plaintiff file an affidavit of merit signed by a health professional, which the plaintiff's attorney reasonably believes meets the requirements for an expert witness under MCL 600.2169. Thus, in order to testify against Dr. Sezgin, the expert had to be a neurosurgeon. It is undisputed that Dr. Zaleski was not a neurosurgeon.
The affidavit is thus appropriate only if plaintiffs' attorneys reasonably believed, at the time of the filing of the affidavit of merit, that Dr. Zaleski met the requirements of an expert under MCL 600.2169. See Grossman v Brown, 470 Mich 599-600; 685 NW2d 198 (2004). However, plaintiffs took no action to investigate the qualifications and certifications of Dr. Sezgin, and merely assumed that the affidavit of an orthopedic surgeon was necessary. Because there is no evidence that plaintiffs' attorney utilized any resources to conclude that there was a sufficient match in qualifications, summary disposition was proper for failing to satisfy MCL 600.2169d. See Grossman, supra. Because the statute of limitations has expired, plaintiffs are precluded from filing their claim.
III.
Because the trial court determined that the affidavit of merit was sufficient to commence suit against Dr. Sezgin, it did not dismiss the case in June 2002. However, after Dr. Sezgin was served in January 2003, the court considered whether the complaint was void because it was filed in violation of a bankruptcy stay. It granted summary disposition on this basis.
When an automatic bankruptcy stay is in place, a plaintiff may not file a medical malpractice action. Ashby v Byrnes, 251 Mich App 537, 539; 651 NW2d 922 (2002). 11 USC 362 provides that a petition for bankruptcy operates as a stay, applicable to all entities, of the commencement of an action or proceeding against the debtor. The majority of federal circuits have held that actions taken in violation of the automatic stay are void, not just voidable. Easley v Pettibone MI Corp, 990 F2d 905, 909-910 (CA 6, 1993). Actions are generally void, even where the creditor had no notice of the automatic stay. Smith v First America Bank, 876 F2d 524, 526 (CA 6, 1989). In Easley, supra at 911, the court held that actions filed in contravention of the automatic stay are invalid and voidable but are not automatically void. However, they shall be voided "absent limited equitable circumstances." The court in Easley suggested that "only where the debtor unreasonably withholds notice of the stay and the creditor would be prejudiced if the debtor is able to raise the stay as a defense, or where the debtor is attempting to use the stay unfairly as a shield to avoid an unfavorable result, will the protections of section 362(a) be unavailable to the debtor." Id.
In this case, the trial court correctly found, as a matter of law, that plaintiffs' action was void. There existed no limited, equitable circumstances that would preclude a declaration that the action was not void. Dr. Sezgin included plaintiffs on the list of potential creditors in his bankruptcy petition. The bankruptcy court
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