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Young v. Sellers12/20/2002
FOR PUBLICATION
In this medical malpractice action, defendants appeal by leave granted the trial court's order granting plaintiff's motion for late filing of an affidavit of merit and denying defendants' motion for summary disposition.
On November 28, 2001, plaintiff filed a medical malpractice claim against John D. Sellers, D.O., and John Sellers, D.O., P.C. Plaintiff's complaint stemmed from a hysterectomy that was performed by Dr. Sellers on June 10, 1999. Plaintiff claimed that as a result of Dr. Sellers' negligence she suffered fistulous communication (fecal-vaginal fistula) and was forced to undergo further surgeries to correct this condition.
Plaintiff obtained a signed and sworn affidavit of merit from Ronald Zack, M.D., who is board certified in obstetrics and gynecology, on November 23, 2001. However, plaintiff inadvertently failed to file the affidavit of merit with her complaint. Plaintiff subsequently mailed the complaint to defendant on December 6, 2001. Pursuant to defense counsel's request, a secretary for plaintiff's counsel faxed a copy of the affidavit of merit to her office on December 27, 2001. Plaintiff's counsel alleged that he discovered that the original affidavit of merit was still in his case file on January 9, 2002, and that he immediately filed it with the trial court.
Plaintiff filed a motion on January 14, 2002, requesting an order allowing the late filing of the affidavit of merit. In the motion, plaintiff explained that the affidavit of merit was obtained well before the period of limitations expired and that it was accidentally omitted when the complaint was filed by an employee. Plaintiff noted that the statute is silent as to the sanctions for failing to timely file an affidavit of merit. Furthermore, plaintiff alleged that the late filing would not prejudice defendants.
On January 17, 2002, defendants moved for summary disposition on the ground that plaintiff's medical malpractice claim was time-barred and should be dismissed. MCR 2.116(C)(7). Specifically, defendants asserted that the affidavit of merit needed to be filed with the complaint to toll the statute of limitations. According to defendants, the statute of limitations for plaintiff's claim expired on December 10, 2001.
During the February 6, 2002 hearing on plaintiff's motion, the trial court determined that the signed affidavit of merit was in existence prior to the filing of the complaint. As such, the trial court concluded that there was no statute of limitations problem. The trial court noted that it was "not as though an Affidavit of Merit was never executed that laintiff is going out after he filed his omplaint to get an Affidavit of Merit so the factual sequence should indicate clearly that the Affidavit was already in existence at the time the omplaint was filed." Applying this rationale, the trial court ordered a nunc pro tunc order to correct the date of the filing of the affidavit of merit. Accordingly, the trial court denied defendants' pending motion for summary disposition.
On appeal, defendants claim that the trial court erred when it allowed plaintiff to file an affidavit of merit after the expiration of the statute of limitations. A trial court's decision to grant or deny a motion for summary disposition is reviewed de novo on appeal. Roberts v Mecosta Co General Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002). Likewise, " bsent disputed questions of fact, whether a cause of action is barred by a statute of limitations is a question of law that this Court also reviews de novo." Hudick v Hastings Mut Ins Co, 247 Mich App 602, 605-606; 637 NW2d 521 (2001). In a motion for summary disposition, pursuant to MCR 2.11
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