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Apsey v. Memorial Hospital6/9/2005
00.2102(d) certification accomplishes a "maximum of justice" under the presented circumstances. Lindsey, supra at 69.
In the present case, equity also supports a deviation from the strict compliance with the statute of limitations because of understandable confusion regarding the applicable statute. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004); Ward v Rooney-Gandy, 265 Mich App 515, 522 n 4; __ NW2d __ (2005). In Bryant, supra at 432-433, our Supreme Court, in discussing why a medical malpractice claim that would typically be time barred should, instead, proceed, provided:
The equities of this case, however, compel a different result. The distinction between actions sounding in medical malpractice and those sounding in ordinary negligence is one that has troubled the bench and bar in Michigan . . . . Plaintiff's failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights.
Plaintiff has stated two claims that require expert testimony and therefore sound in medical malpractice. Although these claims were filed after the applicable period of limitations had run and would ordinarily be time-barred, the procedural features of this case dictate that plaintiff should be permitted to proceed with her medical malpractice claims.
Similarly, plaintiffs in the present case, like apparently a significant number of the bar of Michigan, were under the impression that meeting the requirements of the URAA was sufficient to verify an out of state notarial act on an affidavit of merit filed with the court to support a medical malpractice claim. Dismissal of plaintiffs' complaint in the present case, like in Ward would be "fundamentally unfair and constitute an unjust technical forfeiture" of the cause of action. Ward, supra at 523. The equities in this case dictate that we find plaintiffs' claims are not time barred. But for the certification, plaintiffs' complaint would not have been dismissed. A sound affidavit of merit exists, the only problem being the failure to certify as required by MCL 600.2102(4) prior to the expiration of the statute of limitations. The statutory purpose for medical malpractice affidavits of merit is to detour frivolous medical malpractice claims. Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 47; 594 NW2d 455 (1999). This purpose was served in the present case as defendants were put on timely notice of the claims with an affidavit of merit that met every requirement, except the out of state notarial act had not been properly certified. Like in Bryant, the "procedural features of this case dictate" that plaintiffs should be permitted to proceed with the medical malpractice claims. Bryant, supra at 433. Thus, the equities also weigh in favor of plaintiffs' action not being barred by the statute of limitations.
For the above stated reasons, reversing the trial court's order granting defendants' motions for summary disposition and allowing plaintiffs' claims to proceed best serve justice and equity. Plaintiffs, in this case, have already presented the proper certification. With regard to all medical malpractice cases pending where plaintiffs are not in compliance with MCL 600.2102(4), on the basis of justice and equity, plaintiffs can come into compliance by filing the proper certification. But justice and equity also dictates a strict application from the date of this opinion. From the date of the issuance of this opinion, any affidavit of merit acknowledged by an out of state notary filed without the proper certification will not toll the statute of limitations because t
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