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Jewell v. Pinson9/1/2005
UNPUBLISHED
Before: O'Connell, P.J., and Schuette and Borrello, JJ.
Plaintiffs appeal as of right a trial court order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7) based on plaintiffs' failure to file a valid affidavit of merit with their medical malpractice complaint before the statute of limitations expired. We affirm.
Plaintiffs filed a medical malpractice complaint against defendants. Plaintiffs attached to their complaint three documents that were purportedly affidavits of merit as required by MCL 600.2912d. However, none of the affidavits were notarized, nor was there any indication that the affidavits were made under oath or affirmation. Defendant W.A. Foote Hospital (hereinafter defendant hospital) moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that under Holmes v Michigan Capital Medical Ctr, 242 Mich App 703; 620 NW2d 319 (2000),plaintiffs' complaint was barred by the statute of limitations because the affidavits attached to plaintiffs' complaint did not constitute valid affidavits under MCL 600.2912d(1) because they were not made under oath or affirmation and were not notarized. Therefore, defendant hospital contended, the purported affidavits did not qualify as affidavits and were insufficient to toll the statute of limitations. Defendant doctors also moved for summary disposition under MCR 2.116(C)(7).
The trial court granted defendants' motions for summary disposition pursuant to MCR 2.116(C)(7). In granting the motions, the trial court relied on this Court's opinion in Holmes, supra,and concluded that plaintiffs' purported affidavits of merit, which were not made under oath or affirmation and were not notarized, did not constitute valid affidavits of merit under MCL 600.2912d(1) because they were not confirmed by oath or affirmation, they were not notarized, and they were completely void of a jurat. The trial court also rejected plaintiffs' argument that defendants' motion for summary disposition based on plaintiffs' failure to comply with MCL 600.2912d(1) was barred by the equitable doctrine of laches. The trial court reasoned that defendants' motion for summary disposition was timely because it was filed shortly after plaintiffs' experts were deposed and because defendant hospital indicated in its affirmative defenses, which were filed on August 16, 2002, that plaintiffs had failed to file the affidavit of merit required by MCL 600.2912d and explicitly gave plaintiffs notice that defendants would move for summary disposition.
This Court reviews de novo a trial court's decision to grant or deny summary disposition. Mouradian v Goldberg, 256 Mich App 566, 570; 664 NW2d 805 (2003).Summary disposition is appropriate under MCR 2.116(C)(7) when a claim is time-barred. Id. at 571. In deciding a motion made under MCR 2.116(C)(7), a court should consider all affidavits, pleadings, and other documentary evidence submitted by the parties. Holmes, supra at 706. If the pleadings or other documentary evidence reveal no genuine issues of material fact, the court must decide as a matter of law whether the claim is statutorily barred. Id.
Plaintiffs first argue that the trial court erred in granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(7). According to plaintiffs, summary disposition in favor of defendants was improper even though the affidavits of merit attached to plaintiffs' complaint were not notarized. We disagree.
In a medical malpractice action, "the plaintiff . . . shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert
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