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Glancy v. Steinberg6/24/2003
UNPUBLISHED
Defendants David Steinberg, M.D., Associates in Physical Medicine and Rehabilitation, P.C. (APMR), and Washtenaw Hills Manor, Inc., d/b/a Heartland Health Care Center - Ann Arbor (Heartland), appeal by leave granted the trial court's denial of their motion for summary disposition. We reverse.
I. Facts and Procedural History
On December 22, 2000, plaintiff filed a medical malpractice wrongful death claim arising out of the July 18, 1998 death of Frank Glancy. Plaintiff filed two statutorily mandated affidavits of merit with the complaint, one signed by an Illinois physician, Michael F. Gonzales, M.D., the other signed by a nurse registered by the state of Ohio, Jill B. Thomas, R.N. Both affidavits were purportedly notarized and sworn by Annette Bujarski, who worked as a secretary at plaintiff counsel's law firm.
In their affirmative defenses, filed on February 22, 2001, Steinberg and APMR asserted that Gonzales' affidavit is defective because "it was not attested to by the signator . . . in the manner prescribed by the statute and required by the applicable case law." On August 14, 2001, Steinberg and APMR filed a motion for summary disposition and alleged that plaintiff failed to file a valid affidavit of merit under MCL 600.2912d(1) because Bujarski, the notary , testified that, while she signed the jurat on each affidavit acknowledging that the affidavit was subscribed and sworn before her, she did not know either affiant, Gonzales or Thomas, she did not witness their signatures, she did not verify the affiants' identities, and she did not administer an oath to either affiant. Steinberg and APMR argued that, because the affidavits were defective, the trial court should strike the complaint. Heartland joined and concurred in the motion on September 6, 2001.
In response, plaintiff argued that, despite the defective notarization, she substantially complied with the affidavit of merit requirements under MCL 600.2912d(1) and that, therefore, the dismissal of her complaint would be unduly harsh. With her response, plaintiff also submitted properly notarized affidavits of merit from Gonzales and Thomas.
At oral argument on October 11, 2001, the trial court denied defendants' motion because it reasoned, under Michigan law, a case may be dismissed for a violation of MCL 600.2912d(1) only if the plaintiff completely fails to file an affidavit of merit, not where the affidavit is merely defective. The trial court entered an order denying the motion on November 6, 2001. This Court granted defendants' applications for leave to appeal the trial court's order on February 19, 2002.
II. Summary of Holding
We hold that the trial court erred by denying defendants' motion for summary disposition because plaintiff failed to comply with the affidavit requirements under MCL 600.2912d(1). Our decision is controlled by Holmes v Michigan Capital Medical Center, 242 Mich App 703; 620 NW2d 319 (2000), in which this Court held that, for purposes of the affidavit requirement under MCL 600.2912d(1), "where no indication exists that the doctor confirmed the document's contents by oath or affirmation before a person authorized to issue the oath or affirmation, the document does not qualify as a proper affidavit." Id. at 712. Here, the unrebutted evidence shows that neither affiant confirmed the contents of the affidavits by oath or affirmation before the notary and, therefore, plaintiff's complaint did not initiate an action against defendants. Moreover, defendants notified plaintiff of this defect at the outset of this case, long before the statute of limitations expired on plaintiff's claims and, thus, with sufficient war
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