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Apsey v. Memorial Hospital6/9/2005
ON RECONSIDERATION
FOR PUBLICATION
Before: Cavanagh, P.J., and Jansen and Gage, JJ.
Plaintiffs, Sue H. Apsey and Robert Apsey, Jr., appeal as of right from a circuit order granting summary disposition to defendants, Memorial Hospital, doing business as Memorial Healthcare Center; two of its practitioners, Doctors Russell H. Tobe and James H. Deering; and the business entities under which they practice. We reverse and remand for further proceedings.
Plaintiffs commenced this action in November 2001, stating that Sue Apsey was admitted to Memorial Healthcare Center for an "exploratory laparotomy," which resulted in the removal of a large ovarian cyst. Various complications followed. Plaintiffs allege that misdiagnoses and errant reporting attendant to those complications caused Sue Apsey to become "septic," requiring several follow-up surgeries.
Plaintiffs' affidavit of merit was prepared in Pennsylvania, using a notary public of that state. A normal notarial seal appears on the document, and it is not disputed that plaintiffs initially provided no special certification to authenticate the credentials of the out-of-state notary public. Instead, plaintiffs provided that certification after the period of limitations had run on their cause of action. Defendants motioned the trial court for summary disposition with regard to plaintiffs' medical malpractice claims, citing MCL 600.2912d and 600.2102. In granting the motions, the court reasoned that the failure to provide the special certification was fatal to the notarization, and, thus, that the affidavit itself was a nullity, rendering plaintiffs' complaint invalid.
At issue in this appeal is whether MCL 565.262, the general statute concerning notarial acts, governs affidavits of merit in medical malpractice cases, or whether the more demanding requirements of MCL 600.2102 apply. Plaintiffs contend that the trial court erred by granting defendants' motions for summary disposition and holding that an out-of-state affidavit of merit in a medical malpractice case not only must be notarized, but also must be accompanied by a certificate setting forth the notary 's authority.
This Court reviews a trial court's decision on a motion for summary disposition de novo as a question of law. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003); Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). Statutory interpretation likewise presents a question of law, calling for review de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003); Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 227; 532 NW2d 903 (1995).
MCL 600.2912d(1) provides, in part:
he plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff 's attorney 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 witness . . . . The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff 's attorney concerning the allegations contained in the notice . . . .
Subsections 1(a) through (d) go on to set forth the particulars to which the expert must attest. An affidavit for these purposes must be "confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation." Holmes v Michigan Capital Med Ctr, 242 Mich App 703, 711; 620 NW2d 319 (2000). In the medical malpractice context, a valid affidavit of merit
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