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Apsey v. Memorial Hospital6/9/2005
58, 662; 660 NW2d 341 (2002) (unless a plaintiff has moved for a statutorily provided extension, the plaintiff may not file a medical malpractice complaint without an affidavit of merit, then cure that deficiency by filing the affidavit after the period of limitations has run). Consequently, a belatedly filed certification of an out of state notary public would not cure the defect in an otherwise timely complaint and affidavit.
Because of the injustice and inequity that could result from our determination on this issue of first impression we will address whether the ramifications (a dismissal based on the claims being time barred) of our interpretation should be applied retroactively or prospectively. "'"The general rule is that judicial decisions are to be given complete retroactive effect . . . . "'" Ousely v McLaren, 264 Mich App 486, 493; 691 NW2d 817 (2004), quoting Lincoln v Gen Motors Corp, 461 Mich 483, 491; 607 NW2d 73 (2000), quoting Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 240; 393 NW2d 847 (1986) (intermediate citation deleted). "' more flexible approach is warranted where injustice might result from full retroactivity.'" Gladych v New Family Homes, Inc, 468 Mich 594, 606; 664 NW2d 705 (2003), quoting Pohutski, supra at 696, citing Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 (1997). Complete prospective application has been deemed appropriate for a decision that "decides an '"issue of first impression whose resolution was not clearly foreshadowed."'" Lindsey, supra at 68, quoting People v Phillips, 416 Mich 63, 68; 330 NW2d 366 (1982), quoting Chevron Oil Co v. Huson, 404 US 97, 106; 92 S Ct 349; 30 L Ed 2d 296 (1971).
In essence the question before this Court is an issue of first impression whose resolution, because of the URAA, was not clearly foreshadowed. Our decision is based on a law, MCL 600.2102, requiring a special certification for out of state notarial acts, which has either been overlooked by practitioners in medical malpractice cases, or, more likely, practitioners have been under the impression that the URAA, enacted subsequent to MCL 600.2102, was the applicable statute and that special certification was not required. Plaintiffs' counsel raised a concern at oral argument with regard to the significant impact this holding could have on medical malpractice cases in Michigan because of the fact that a majority of affidavits of merit for medical malpractice cases come from out of state and that practitioners have relied on the URAA validation requirements for the out of state notarial acts. Amici Curiae have also raised concerns regarding practitioner's beliefs that the less restrictive URAA requirements for verification of notarial acts was sufficient verification, and the significant impact this would have on medical malpractice claims, which in large part are supported by affidavits of merit from out of state doctors. Apparently, there has been confusion in the legal community as to whether the more relaxed standards of the URAA applied. In light of the apparent reliance on the URAA by the legal community, we believe the justice requires a prospective application. See Gladych, supra at 606. Retroactive application would result in the dismissal of a large number of otherwise meritorious medical malpractice claims. Our Supreme Court has recognized that "resolution of the retrospective-prospective issue ultimately turns on considerations of fairness and public policy." Riley v C & H Indus, 431 Mich 632, 644-645; 433 NW2d 787 (1988). Fairness and public policy both support a prospective application because a serious injustice could result from a retroactive application, and prospective application of the ramifications for the failure to provide the MCL 6
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