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Wyant v. Norton Shores Medi-Center12/13/2005
UNPUBLISHED
Before: Whitbeck, C.J., and Bandstra and Markey, JJ.
Plaintiff appeals by right the trial court's order granting all defendants summary disposition based on the expiration of the statute of limitations and dismissing his medical malpractice claim with prejudice. Defendant Scott cross-appeals from a previous order denying his motion for summary disposition based on the expiration of the statute of limitations. We affirm the trial court's order granting all defendants summary disposition and find it unnecessary to address defendant Scott's cross-appeal.
Plaintiff first argues that an affidavit that is not properly notarized is defective, and the proper remedy is dismissal without prejudice. We disagree.
Summary disposition is appropriate under MCR 2.116(C)(7) when a claim is time-barred. McKiney v Clayman, 237 Mich App 198, 201; 602 NW2d 612 (1999).
In Holmes v Michigan Capital Medical Center, 242 Mich App 703; 620 NW2d 319 (2000), three cases were consolidated on appeal. The plaintiff in one of the cases filed a complaint alleging malpractice on March 27, 1996, but did not attach an affidavit of merit. Id. at 710. On December 16, 1996, an unsworn affidavit was filed. On January 27, 1997, the plaintiff filed a second complaint and an unsworn affidavit. On August 8, 1998 the plaintiff filed a complaint with an affidavit of merit. Id. The statute of limitations expired on February 8, 1997. Id. The defendants moved for summary disposition and argued that the document filed December 16, 1996, was not an affidavit of merit because it was not properly sworn, so the statute of limitations was not tolled.
In Holmes, we held that the trial court correctly determined that the unsworn document did not satisfy MCL 600.2912d(1), which requires a complaint alleging malpractice to be accompanied by an affidavit of merit. We stated that an affidavit "must be (1) a written or printed declaration of 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." Holmes, supra at 711, citing People v Sloan, 450 Mich 160, 177, n 8; 538 NW2d 380 (1995), and Blacks Law Dictionary (7th ed). We held that the December 16, 1996, document did not meet the last requirement because "no evidence establishes that the affirmation was made before a person authorized to administer an oath." Holmes, supra at 711. Therefore, we held that the claim was time barred because an affidavit of merit was not filed before the expiration of the limitations period. Id. at 712.
Similarly, in the present case the affidavit of merit was not signed in the presence of a notary public, so all of the requirements of a valid affidavit were not met. Therefore, by definition the document attached to the complaint was not an affidavit and was tantamount to not filing an affidavit at all.
Additionally, as our Supreme Court very clearly stated in Scarsella v Pollak, 461 Mich 547, 551-552; 607 NW2d 711 (2000) (Scarsella II), "a plaintiff who files a medical-malpractice complaint without the required affidavit is subject to dismissal without prejudice, and can refile properly at a later date. However, such a plaintiff must still comply with the applicable statute of limitations." When an affidavit of merit is not attached to the complaint, the action is not properly commenced and the statute of limitations is not tolled. Id. at 552-553.
In the present case, plaintiff did not comply with the statute of limitations. The alleged malpractice occurred on August 8, 1996, and the decedent passed away on August 12, 1996. Letters
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