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In re Guerra6/11/2002
UNPUBLISHED
Plaintiff appeals as of right the circuit court's order granting defendants summary disposition pursuant to MCR 2.116(C)(7) and (8) in this medical malpractice action. We affirm.
Bradley Guerra, plaintiff's infant son, died on July 2, 1997. On October 12, 1998, plaintiff filed a medical malpractice action against defendants, attaching to her complaint a document titled "Plaintiff's Affidavit of Merit Under MCL 600.5856(D)." The document, signed by Dr. Richard Fields, M.D., was not notarized. All defendants filed answers and responded to the allegations in plaintiff's complaint. The case continued to be litigated until, on February 12, 2001, defendant Dr. Majkrzak filed a motion for summary disposition, alleging that the statutory limitations period expired because plaintiff failed to file a valid affidavit of merit. The trial court granted summary disposition, finding that the statutory limitations period was not tolled because plaintiff's purported affidavit was not notarized, and dismissed the case with prejudice against all defendants.
Plaintiff argues that the statute of limitations was tolled pursuant to MCL 600.5856(b) when defendants appeared and filed responsive pleadings contesting the merits of the case, thereby submitting to the circuit court's jurisdiction. Although we find plaintiff's argument persuasive, we must disagree in light of Supreme Court precedent.
The applicable statutory limitations period for this claim was two years. MCL 600.5805(5). Because Bradley Guerra died on July 2, 1997, the statute of limitations expired on July 2, 1999, unless tolled. MCL 600.5856 provides, in part, that a statute of limitations is tolled at the time the complaint is filed and a copy of the summons and complaint are served on the defendant, MCL 600.5856(a), or at the time jurisdiction over the defendant is otherwise acquired, MCL 600.5856(b).
To commence a medical malpractice action, a plaintiff must file a complaint and affidavit of merit. MCL 600.2912d; Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000). The affidavit of merit is mandatory and imperative. Id. " he mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit." Id. To be effective, the document filed with the complaint must be a valid affidavit. Holmes v Michigan Capital Medical Center, 242 Mich App 703, 711; 620 NW2d 319 (2000). "To constitute a valid affidavit, a document must be (1) a written or printed declaration or statement of facts, (2) made voluntarily, and (3) confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation." Id., citing People v Sloan, 450 Mich 160, 177 n 8; 538 NW2d 380 (1995). In this case, the document plaintiff attached to the complaint was not a valid affidavit of merit because it failed to meet the third requirement-- there was no indication that the doctor confirmed the contents by oath before a person having the authority to administer an oath. Because plaintiff's purported affidavit failed to meet the statutory requirements, it was insufficient to toll the statutory limitations period pursuant to MCL 600.5856(a). Holmes, supra at 712.
Plaintiff, however, argues that the statutory limitations period was tolled by MCL 600.5856(b). The fundamental question in determining whether a limitations period has been tolled in accordance with MCL 600.5856 is whether the trial court acquired jurisdiction over the defendant through service of process, consent, or other means. Mair v Consumers Power Co, 419 Mich 74, 82; 348 NW2d 256 (1984); McNeil v Quines, 195 Mich App 199, 203; 489 NW2d 180 (1992); Roberts
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