Jump to Navigation

Blog Topic

Recent Amendments to Michigan Court Rules Affect Medical Malpractice Matters

The Michigan Supreme Court recently amended two key Michigan Court Rules, MCR 2.112 and 2.118, which impact the filing and handling of medical malpractice claims in the state of Michigan. These amendments become effective May 1, 2010.

MCR 2.112(L) pertains to the filing requirements of an affidavit of merit and an affidavit of meritorious defense in medical malpractice matters. Additional language has been added to MCR 2.112(L). The new language is underlined below:

(L) Medical Malpractice Actions.

(1) In an action alleging medical malpractice filed on or after October 1, 1993, each party must file an affidavit as provided in MCL 600.2912d, and 600.2912e. Notice of filing the affidavit must be promptly served on the opposing party. If the opposing party has appeared in the action, the notice may be served in the manner provided by MCR 2.107. If the opposing party has not appeared, the notice must be served in the manner provided by MCR 2.105. Proof of service of the notice must be promptly filed with the court.

•(2) In a medical malpractice action, unless the court allows a later challenge for good cause:

(a) all challenges to a notice of intent to sue must be made by motion, filed pursuant to MCR 2.119, at the time the defendant files its first response to the complaint, whether by answer or motion, and

(b) all challenges to an affidavit of merit or affidavit of meritorious defense, including challenges to the qualifications of the signer, must be made by motion, filed pursuant to MCR 2.119, within 63 days of service of the affidavit on the opposing party. An affidavit of merit or meritorious defense may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301.

Michigan Court Rule 2.118 pertains to the amendment and filing of supplemental pleadings. The underlined language below was added to subpart (D) of this rule as follows:

(D) Relation Back of Amendment. An amendment that adds a claim or defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading. In a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit.

The amendment to these Court Rules was adopted by the Michigan Supreme Court by a 4-3 vote. Justices Kelly, Cavanagh, Weaver, and Hathaway voted in favor of these amendments, while Justices Corrigan, Young and Markman dissented.

The affects of the amendments remain to be seen, however, in detailed comments by Justices Corrigan, Young and Markman opposing the adoption of these amendments, it appears as though a plaintiff who files a complaint accompanied by a defective affidavit of merit is no longer subject to the dismissal of the matter without prejudice, as the Michigan Supreme Court had previously held was the proper remedy. See Kirkaldy v Rim, 478 Mich 581 (2007).

Based upon these amendments, regardless of whether the dismissal of a medical malpractice complaint based upon the filing of a defective affidavit of merit would result in a bar to the cause of action based upon the expiration of the statute of limitations, the new amendments to the Court Rules provide that a defective affidavit can be amended, which would relate back to the date the original defective affidavit was filed. Thus, regardless of whether the statute of limitations has expired, a plaintiff may be given an opportunity to correct a defective affidavit. Justice Markman, in opposing the amendments to these Court Rules, pointed out the inconsistencies between the Kirkaldy, supra opinion and the amended Court Rules as follows:

In Kirkaldy, 478 Mich at 586, this Court held that if an affidavit of merit is successfully challenged, "the proper remedy is dismissal without prejudice." However, MCR 2.112(L)(2)(b), as amended, provides that "[a]n affidavit of merit or meritorious defense may be amended . . . ." Thus, although in Kirkaldy this Court held that "dismissal without prejudice" is the proper remedy for the filing of a defective affidavit, MCR 2.112(L)(2)(b) now provides that an opportunity to file an amended affidavit is the proper remedy.

In addition, in Kirkaldy, 478 Mich at 586, this Court held that if the court determines that the plaintiff's affidavit of merit is defective, plaintiff "would then have whatever time remains in the period of limitations within which to file a complaint accompanied by a conforming affidavit of merit." However, MCR 2.118(D), as amended, provides that "an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit." Thus, although in Kirkaldy this Court held that an amended affidavit of merit had to be filed before the period of limitations expired, MCR 2.118(D) now provides that the amended affidavit "relates back to the date of the original filing of the affidavit." Under MCR 2.118(D), as amended, it is now unclear whether there is any time limitation on the filing of an amended affidavit of merit. Can a plaintiff file an amended affidavit of merit even after the period of limitations has expired (or at least would have expired if the case had been dismissed as is required by Kirkaldy)? What about the affidavit of meritorious defense? Does a defendant also have an unlimited amount of time in which to file an amended affidavit of meritorious defense? Do the parties even have to file amended affidavits, or can the court simply disregard any defects in the affidavits?

In addition to the above, the changes made to Michigan Court Rule 2.112(L)(2) provide specific time frames within which a party must challenge a notice of intent or an affidavit of merit or an affidavit of meritorious defense. A challenge to a Notice of Intent must be made at the time of the filing of a Defendant's first response to the complaint and challenges to an affidavit of merit or affidavit of meritorious defense must be made within 63 days of service of the affidavit. The new language to these Court rules provide additional procedural time frames within which to file particular pleadings in malpractice actions and must be noted and carefully followed.

The amendments to these Court Rules, as well as the recent opinions by the Supreme Court, continue to signal a change in the legal climate of the State of Michigan. Whether the law in the state of Michigan will continue to become more plaintiff oriented remains to be seen.

For any questions or concerns you may have regarding these recent amendments to the Court rules or any other questions you may have regarding a dental malpractice issue, please feel free to call Andrew J. Paluda at Paluda PC to set up a consultation.