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Nippa v. Botsford General Hospital6/21/2002
).
Further, we believe that if the Legislature had intended to strictly limit the definition of the word "party" to parties of record as that word is generally defined in the law, it may have so stated. "It is a well-known principle that the Legislature is presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws." Stone v State of Michigan, 247 Mich App 507, 521, n 31; 638 NW2d 417 (2001). For example, in other provisions of the RJA, the Legislature has expressly provided that the term "party" refer only to named parties to the proceedings. See, e.g., MCL 600.2159 (" he parties to any such suit or proceeding named in the record, and person for whose benefit such suit or proceeding is prosecuted, or defended, may be witnesses therein . . . .") (emphasis supplied); MCL 600.2162(3) ("In a case in which the husband or wife is a party to the record in a suit, action, or proceeding . . . .") (emphasis supplied). Particularly worthy of note is MCL 600.2421b(2), part of Chapter 24 of the RJA dealing with costs, which provides that " arty means a named plaintiff or defendant involved in the particular civil action." [Emphasis supplied.]
Moreover, our conclusion that the Legislature's use of the word "party" does not refer solely to named parties of record is supported by our Supreme Court's decision in Caswell v Smith's Estate, 263 Mich 390, 405-406; 248 NW 845 (1933), where the majority, quoting Cutter v Powers, 200 Mich 375, 386; 166 NW 1029 (1918), and interpreting the term "opposite party" in the dead man's statute, concluded that "' t is well settled in this state that the opposite party does not necessarily mean a party to the record; but it means any person whose interests are, as matter of fact antagonistic to the interests of those for whose benefit the statute was passed.'" See also Seeber v Citizens State Bank of Sturgis, 7 Mich App 33, 37; 151 NW2d 222 (1967). Accordingly, we reject plaintiff's claim that the word "party" in MCL 600.2169 should be interpreted to refer only to named parties of record, where such a construction would not further the purpose of the statute or the object it seeks to accomplish. Macomb Co Prosecutor v Murphy, 464 Mich 149, 158; 627 NW2d 247 (2001).
Finally, plaintiff argues that her failure to provide an affidavit from a physician board- certified in infectious disease is excusable, given her reasonable belief at the time she filed the affidavit that the statute imposing such requirements was unconstitutional. In the lower court, plaintiff presented the affidavit of her attorney, Richard B. Worsham. In the affidavit, Worsham averred that when he filed Markowitz' affidavit of merit on July 12, 1999, he reasonably believed that it complied with the medical malpractice statutory requirements, given that this Court had declared MCL 600.2169(1) unconstitutional. In response, defendant invites this Court to undertake an inquiry into whether our Supreme Court's decision in McDougall II, supra, operates retroactively. We decline defendant's invitation because the trial court did not expressly decide this issue, Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999); Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791 (1992), and because we find plaintiff's argument unavailing on other grounds.
As relevant to plaintiff's argument, MCL 600.2912d(1) provides:
Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets
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