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Smith v. Everett3/1/2002
UNPUBLISHED
Plaintiff appeals as of right the order granting defendants' motion for summary disposition in this medical malpractice action. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
On September 16, 1999, plaintiff filed a malpractice complaint alleging that defendants failed to timely diagnose and treat a post-operative hemorrhage. The alleged malpractice occurred on October 18, 1997. In their affirmative defenses, filed with their answer on October 28, 1999, defendants asserted that the action should be dismissed because plaintiff failed to attach an affidavit of merit to the complaint. Defendants moved for summary disposition, asserting that the action was barred by the two-year statute of limitations. When plaintiff could not produce evidence that the affidavit was included in another court file, the court granted the motion.
Where a medical malpractice plaintiff wholly omits to file an affidavit of merit, the filing of the complaint is ineffective and does not toll the statute of limitations. Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711(2000). Plaintiff asserts that defendants waived a challenge to the missing affidavit of merit by not raising the issue in a timely manner, relying exclusively on this Court's decisions in Greathouse v Rhodes, 242 Mich App 221; 618 NW2d 106 (2000), and Wilhelm v Mustafa, 243 Mich App 478; 624 NW2d 435 (2000). However, in a peremptory order the Supreme Court reversed the decision in Greathouse, finding that there is no statutory or case law basis for ruling that a medical malpractice expert must be challenged within a reasonable time. Greathouse v Rhodes, 465 Mich 885; ___ NW2d ___ (2001).
Similarly, there is no statutory or case law basis for ruling that a challenge to an absent affidavit of merit must be raised within a reasonable time. Even if there were, defendants raised the issue in their answer, and there was no unreasonable delay.
Affirmed.
Richard A. Bandstra
Christopher M. Murray
MURPHY, J. (concurring).
I concur with the decision to affirm because plaintiff failed to file an affidavit of merit with the complaint and we are bound by the statutory language and previous decision in Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000). It is distressing, nevertheless, that neither the statutory scheme nor court rules provide the possibility of a sanction less harsh in a case such as this where plaintiff claims the affidavit of merit was either inadvertently not filed, or was lost by the court clerk. The trial court should be empowered with some discretion to act under appropriate circumstances in order to avoid injustice. I would encourage the Legislature and the Supreme Court to reconsider this matter.
William B. Murphy
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