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Dudek v. St. John's Hospital6/11/2002
444 Mich 1, 23-24; 506 NW2d 816 (1993).
Here, Dr. Dines' operative report simply notes that it appears that the foreign object was left behind after a laparoscopic surgery without any indication as to a specific surgery. Plaintiff testified at her deposition that Dr. Dines indicated that the foreign object was left behind from the gallbladder surgery. Defendant makes no claim that an operative report was available, or even existed, regarding the gallbladder surgery for plaintiff to review, and it was not until Dr. Schroder's deposition that plaintiff was able to obtain any details regarding the gallbladder surgery.
Additionally, the operative report concerning the 1995 laparoscopic procedure indicated that " t the end of the procedure, the sponge, instrument, and needle counts were correct times two." I see no facts presented suggesting that plaintiff knew or should have known that her cause of action arose out of the 1995 hysterectomy, instead of the 1996 gallbladder surgery, prior to the September 1999 deposition, nor do I find any lack of due diligence on plaintiff 's part. Therefore, plaintiff's amended complaint is not time-barred.
I am in agreement with the majority that plaintiff failed to sufficiently plead fraudulent concealment, and that the fraud claim was properly dismissed.
Finally, regarding defendant's argument that plaintiff failed to file a new affidavit of merit with the first amended complaint, I would find that the affidavit of merit filed with the original complaint complied with MCL 600.2912d and could be used in correlation with the allegations regarding a foreign object contained in the first amended complaint.
A thorough review of MCL 600.2912d does not indicate any requirement that a plaintiff must file a new affidavit of merit every time an amended complaint is filed, but only the requirement that "an" affidavit be filed in a medical malpractice action. Where the language in a statute is clear, the Legislature must have intended the meaning it has plainly expressed, and the statute must be enforced as written. Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997). I would leave for another day the question regarding whether there are some situations where an amended complaint requires the filing of a new affidavit of merit. The statute does not mandate such an action, and under the facts of this case, I see no reason why plaintiff should be required to file a new affidavit of merit, where the allegations of malpractice and breach of the standard of care are essentially the same in both complaints, i.e., a surgical instrument left inside a patient after surgery constitutes medical malpractice.
Additionally, the purpose of MCL 600.2912d is to deter frivolous medical malpractice claims, VandenBerg v VandenBerg, 231 Mich App 497, 502-503; 586 NW2d 570 (1998), and that purpose had been served in the present case based on the affidavit of merit filed with the original complaint.
I would reverse the trial court's judgment granting defendant's motion for summary disposition.
William B. Murphy
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