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Wilhelm v. Mustafa12/8/2000
FOR PUBLICATION
9:05 a.m.
In this medical malpractice action, plaintiff Anne Wilhelm appeals as of right from the jury's verdict of no cause of action. Plaintiff challenges the trial court's denial of her motions seeking sanctions against defendant for his failure to timely file the affidavit of meritorious defense required under MCL 600.2912e; MSA 27A.2912(5). We affirm.
On March 19, 1996, plaintiff filed a complaint alleging that defendant Tariff H. Mustafa, M.D., was negligent in his medical treatment of decedent Margaret Kukla, plaintiff's mother, and that his negligence resulted in Kukla's death. On the first day of trial, April 20, 1998, plaintiff moved to strike defendant's answer, enter a default in favor of plaintiff, and allow plaintiff to present proofs in support of entry of a default judgment, because defendant failed to timely file an affidavit of meritorious defense pursuant to MCL 600.2912e; MSA 27A.2912(5).
Later that same day, defendant filed an affidavit of meritorious defense stating that Dr. Gordon Moss would testify as an expert internist on behalf of defendant. Defendant acknowledged that the affidavit was late under the statute. Plaintiff argued that the trial court was without jurisdiction to hear the case because of defendant's failure to comply with the statutory requirements. The trial court gave defendant three days to respond to plaintiff's motion to strike defendant's answer and to enter a default, and stated that if plaintiff needed more time to deal with any information contained in the late affidavit, she should request an adjournment. The court noted plaintiff's failure to include in the final pretrial order the procedural defense it was attempting to rely upon on the first day of trial, and plaintiff's silence on the matter of the affidavit for the approximately two years during which discovery proceeded.
Following the conclusion of plaintiff's case in chief, plaintiff moved for a directed verdict in her favor on the basis, in part, of the untimely filing of the affidavit of meritorious defense. Plaintiff argued that defendant should be precluded from offering a defense as a result of the procedural deficiency. The court denied the motion. Plaintiff again raised the issue in an attempt to preclude defendant from calling as a witness Dr. Moss, defendant's expert internist and the physician who signed the untimely affidavit of meritorious defense. The trial court denied plaintiff's motion and allowed Dr. Moss to testify. Following the conclusion of defendant's proofs, plaintiff renewed her motion for a directed verdict. The trial court deferred ruling on the issue until the following day.
The jury returned a verdict of no cause of action in favor of defendant prior to the trial court's decision on plaintiff's motion. In subsequently denying plaintiff's motion for a directed verdict, the trial court found that plaintiff waived her right to present the affidavit of merit issue by failing to present the issue as a possible defense in the final pretrial order; that the relevant statute does not provide a remedy for failure to comply with the statutory requirements and plaintiff's requested remedy of default was too extreme; that as soon as the omission was brought to the attention of defendant, he immediately filed the affidavit of meritorious defense with the court; and that plaintiff did not suffer any substantive prejudice as a result of defendant's failure to file the affidavit. The court concluded that to allow both parties to present their arguments and witnesses to the jury was the best way to resolve the legal controversy.
On June 8, 1998, plaintiff filed a motion for judgment notwiths
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