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Kirkaldy v. Rim6/4/2002
FOR PUBLICATION
Defendants Raina M. Ernstoff, M.D., and Raina M. Ernstoff, M.D., P.C. (Ernstoff defendants), appeal as of right an order dismissing plaintiffs' complaint without prejudice. We affirm.
I.
Defendant Choon Soo Rim, M.D., first examined plaintiff Mary Kirkaldy on June 17, 1996, for complaints of right-sided weakness, lack of motor coordination, clumsiness, and being off-balance. Dr. Rim diagnosed Mary with myasthenia gravis on October 4, 1996, which appears to be that last date that he treated her. Dr. Ernstoff first examined Mary on or about October 28, 1996, arriving at the same diagnosis as Dr. Rim, and continued to treat her through at least February 28, 1997. In May 1997, Mary's gynecologist ordered a magnetic resonance imaging (MRI) of her brain in response to her complaints of muscle weakness and short-term memory loss. The MRI revealed the presence of a two-centimeter neoplasm (tumor) in her brain, along with obstructive hydrocephalus (excessive accumulation of fluid in the brain).
On June 9, 1998, plaintiffs served defendants with a notice of intent to file a medical malpractice claim pursuant to MCL 600.2912b. On December 7, 1998, plaintiffs filed their complaint alleging that Drs. Rim and Ernstoff breached the standard of care by failing to diagnose and treat Mary's brain tumor. Plaintiffs subsequently filed an affidavit of meritorious claim pursuant to MCL 600.2912d. The affiant was Mark S. Klein, M.D., who was identified in the affidavit as a board certified neurosurgeon. In their responsive affidavits of meritorious defense, both Drs. Rim and Ernstoff claimed to be board certified neurologists.
Defendants Dr. Rim and Rim & Sol, M.D., P.C. (Rim defendants) filed a motion to strike plaintiffs' affidavit of merit, arguing that because Dr. Rim was a board certified neurologist and Dr. Klein was not a board certified neurologist, Dr. Klein did not meet the requirements of an expert witness qualified under MCL 600.2169 to testify against Dr. Rim. Rim defendants further argued that plaintiffs were obligated by MCL 600.2912d to file an affidavit signed by a health professional who the plaintiffs' attorney reasonably believed met the qualifications for an expert witness under MCL 600.2169. Because plaintiffs' affidavit did not comply with the requirements of MCL 600.2912d, Rim defendants asked the trial court to strike the affidavit.
Ernstoff defendants subsequently moved for summary disposition, raising a similar argument to that in Rim defendants' motion to strike, i.e., that Dr. Ernstoff was a board certified neurologist and plaintiffs' affidavit of merit was defective because it was not signed by a board certified neurologist. Ernstoff defendants further argued that because the affidavit was not in compliance with MCL 600.2912d, the complaint was a nullity. In addition, because the two-year limitations period had expired, Ernstoff defendants argued that plaintiffs' complaint should be dismissed pursuant to this Court's holding in Scarsella v Pollak, 232 Mich App 61; 591 NW2d 257 (1998) (Scarsella I).
Plaintiffs responded to Rim defendants' motion to strike by stating that MCL 600.2169 had been ruled unconstitutional by this Court in McDougall v Eluik, 218 Mich App 501; 554 NW2d 56 (1996) (McDougall I) ; therefore, the proper standard for determining an expert witness in a medical malpractice case was MRE 702. Plaintiffs further argued that because Dr. Klein had the knowledge, skill, experience, training, and education to form an opinion regarding the standard of care for a patient with neurological symptoms, he would qualify as an expert witness under MRE 702.
In support of their
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