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by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the July-August 2000 issue of the Journal

Question: Please explain the Affidavit of Merit Provision in the Liability Reform Statutes and advise whether the Michigan Supreme Court has upheld the Provision.

Answer: An important part of Michigan's Malpractice Reform Legislation, which became effective April 1, 1994, includes the affidavit of merit. Under this statute, a plaintiff in a malpractice case must file an affidavit of merit with the complaint.

The Affidavit must be signed by a health professional who meets the expert witness requirements under the law. It must certify that all medical records have been reviewed, and contain a statement as to the applicable standard of care, an opinion that the standard was breached, the actions that should have been taken or omitted to have complied with the standard, and the manner in which the breach was a proximate cause of the injury. The defendant in a malpractice case must file a similar affidavit of meritorious defense within 91 days after the plaintiff has filed the affidavit of merit.

The expert witness qualifications of the health professional who signs the affidavit of merit must meet certain objective tests. In addition to licensure, if the defendant is a specialist the expert must have specialized at the time of the occurrence in the same specialty. If the defendant is board-certified, the expert signing the affidavit must also be board-certified in the same specialty. The expert must also have devoted more than 50 percent of his or her professional time during the year immediately preceding the occurrence to the active clinical practice of that specialty and/or the instruction of that specialty in an accredited professional school. If the defendant is a general practitioner, the expert must have devoted more than 50 percent of his or her professional time during the year immediately preceding the date of the occurrence to the active clinical practice as a general practitioner and/or the instruction in an accredited professional school.

On March 28, 2000, the Michigan Supreme Court decided the case of Scarsella v Pollak. This was the first case decided by the Michigan Supreme Court involving the affidavit of merit Statute. In that case, the plaintiff filed a medical malpractice complaint against the defendant physician approximately three weeks before plaintiff's claim would be barred by the applicable two-year statute of limitations. The plaintiff did not file an Affidavit of Merit with the complaint. Approximately six months thereafter, the defendant filed a motion seeking summary disposition for failure to file the affidavit, and shortly thereafter the plaintiff filed an affidavit of merit. The court ruled that plaintiff's failure to file an Affidavit with his complaint rendered the complaint null and void. The court then reasoned that because the filing was a nullity, it did not toll the period of limitation and therefore the plaintiff's claim was time-barred before the affidavit of merit was finally filed.

The court recognized the general rule of law that a civil action is commenced and the period of limitation is tolled when a complaint is filed. In a malpractice case, plaintiffs must file more than a complaint; they are mandated to file with the complaint an affidavit of merit under the statute. The court held that filing the affidavit of merit with the complaint is mandatory and without meeting this requirement the complaint is insufficient to commence a lawsuit and toll the statute of limitations.

The court rejected the plaintiff's argument that filing the affidavit of merit after the fact should relate back to the original filing of the complaint, so that the statute of limitations would not bar plaintiff's claim. The court rejected this argument for the reason that it would effectively repeal the statutory affidavit of merit requirement. The court stated that to accept plaintiff's contention, malpractice plaintiffs could routinely file their complaints without an affidavit of merit, in contravention of the statutory requirement, and amend by supplementing the filing with an affidavit at a later date. This would, according to the court, completely subvert the statute.

Although there have been multiple decisions from the Michigan Court of Appeals upholding the strict construction of the affidavit of merit statute, this was the first pronouncement by the Michigan Supreme Court. Although these appellate court decisions involve physicians, the same statutory analysis should be applicable to dentists.

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