Opinion
No. 344838
02-06-2020
Charlette LEGION-LONDON, also known as Charlette Legion, and Charlette London, Plaintiff-Appellant, v. SURGICAL INSTITUTE OF MICHIGAN AMBULATORY SURGERY CENTER, LLC, Michigan Brain & Spine Physicians Group, PLLC, Kevin T. Crawford, D.O., P.C., Kevin T. Crawford, D.O., and Aria Sabit, M.D., Defendants-Appellees.
Bendure & Thomas, PLC, Grosse Pointe Park (by Mark R. Bendure ) and McKeen & Associates, PC, Detroit (by Brian J. McKeen and Andrew F. Kay ) for Charlette Legion-London. Corbet, Shaw, Essad & Bonasso, PLLC (by Erika Jost, Daniel R. Corbet, and Kenneth A. Willis, Detroit) and Plunkett Cooney, Bloomfield Hills (by Robert G. Kamenec ) for Kevin T. Crawford, D.O., and Kevin T. Crawford, D.O., PC.
Bendure & Thomas, PLC, Grosse Pointe Park (by Mark R. Bendure ) and McKeen & Associates, PC, Detroit (by Brian J. McKeen and Andrew F. Kay ) for Charlette Legion-London.
Corbet, Shaw, Essad & Bonasso, PLLC (by Erika Jost, Daniel R. Corbet, and Kenneth A. Willis, Detroit) and Plunkett Cooney, Bloomfield Hills (by Robert G. Kamenec ) for Kevin T. Crawford, D.O., and Kevin T. Crawford, D.O., PC.
Before: Cameron, P.J., and Cavanagh and Shapiro, JJ.
Shapiro, J. The trial court granted summary disposition to defendants, Kevin T. Crawford, D.O., and Kevin T. Crawford, D.O., PC (collectively, defendants), on the ground that the author of the affidavit of merit (AOM) filed with the complaint was not an expert in Dr. Crawford's medical specialty. The trial court also denied plaintiff's motion to amend her AOM pursuant to MCR 2.112(L)(2)(b). The proposed amendment revised the affidavit to correctly identify Dr. Crawford's specialty as orthopedics and contained the notarized signature of an expert in orthopedics. The trial court denied the motion and dismissed the case, reasoning that because a different expert had signed the affidavit it could not be considered an amendment. Because the statute of limitations had already run, the case could not be refiled, and plaintiff appealed the dismissal. For the reasons stated in this opinion, we reverse the order granting summary disposition and remand for the trial court to accept the amendment for filing and for further proceedings consistent with this opinion. I. FACTS AND PROCEDURE
We review a trial court's denial of a motion to amend a pleading, including an AOM, for an abuse of discretion. Jackson v. Detroit Med. Ctr. , 278 Mich. App. 532, 539, 753 N.W.2d 635 (2008). An abuse of discretion occurs when a trial court's decision falls "outside the range of reasonable and principled outcomes." Souden v. Souden , 303 Mich. App. 406, 414, 844 N.W.2d 151 (2013). We review de novo the interpretation of court rules. Dextrom v. Wexford Cnty. , 287 Mich. App. 406, 416, 789 N.W.2d 211 (2010). "We employ statutory construction principles when interpreting court rules, applying the rule's plain and unambiguous language as written." Spine Specialists of Mich., P.C. v. State Farm Mut. Auto. Ins. Co. , 317 Mich. App. 497, 501, 894 N.W.2d 749 (2016). "When interpreting a court rule, we must read the rule's provisions reasonably and in context." In re McCarrick/Lamoreaux , 307 Mich. App. 436, 446, 861 N.W.2d 303 (2014) (quotation marks and citations omitted).
Plaintiff filed this medical malpractice suit against two surgeons: Dr. Aria Sabit, a neurosurgeon who was listed on the operative report as the "Surgeon," and Dr. Crawford, identified on the report as "Assistant." Plaintiff's complaint was filed with an AOM signed by a neurosurgeon, stating that the relevant standard of care was that of a neurosurgeon and that both doctors had violated it.
Dr. Sabit defaulted and the case proceeded against only Dr. Crawford and his practice. Dr. Crawford moved for summary disposition, asserting that the AOM was deficient because the standard of care applicable to him was that of an orthopedist, not a neurosurgeon. Plaintiff raised several arguments concerning the suitability of the AOM and subsequently moved to file an amended AOM that referred to the standard of care for an orthopedist and was signed by an orthopedist. The trial court granted defendants' motion for summary disposition and later denied the motion to amend, concluding that the proffered revised affidavit did not constitute an amendment because the affiant was not the same doctor as the one who had signed the initial AOM.
Dr. Sabit is currently serving a 19 ½ year term in federal prison, having been convicted of crimes including healthcare fraud and conspiracy.
Plaintiff also argues that the trial court erred by granting defendants summary disposition because her counsel had a reasonable belief that Dr. Crawford's actions were governed by the standard of care applicable to neurosurgeons since he was merely assisting in the surgery performed by a neurosurgeon. Given our decision allowing the amendment, we need not decide that issue.
II. ANALYSIS
This case is controlled by the 2010 amendment of two court rules. First, MCR 2.112(L) was amended by the addition of Subrule (2). 485 Mich. cclxxv, cclxxv-cclxxvi (2010). Subrule (2)(b) provides a step-by-step procedure to be followed if a defendant believes that the AOM is defective. It provides that the defendant must challenge the AOM within 63 days of service and that a defective affidavit may be amended. It reads in pertinent part:
(2) In a medical malpractice action, unless the court allows a later challenge for good cause:
* * *
(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. [ MCR 2.112(L)(2)(b).]
Second, additional language was added to MCR 2.118(D). 485 Mich. cclxxv, cclxxvi (2010). This amendment provided that a party could request to amend an AOM and that the amended affidavit would relate back to the original filing. The text of the rule, with the added language emphasized, reads:
An amendment that adds a claim or a 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. [ MCR 2.118(D) (emphasis added).]
MCR 2.118(D) does not place limits on the nature of the amendment. It provides for all types of amendments provided that the substance relates to the same conduct as the original pleading. Indeed, "[i]t does not matter whether the proposed amendment introduces new facts, a different cause of action, or a new theory, so long as the amendment springs from the same transactional setting as that pleaded originally." Kostadinovski v. Harrington , 321 Mich. App. 736, 744, 909 N.W.2d 907 (2017). See also Doyle v. Hutzel Hosp. , 241 Mich. App. 206, 212-213, 615 N.W.2d 759 (2000). In this case, it is undisputed that plaintiff's proposed amendment arose out of the same conduct as the conduct described in the original AOM. The substantive allegations pertain to the same event, and the allegations regarding the breach of the standard of care are materially the same. Therefore, plaintiff's proposed amendment is within the purview of MCR 2.118(D).
Defendants do not refer us to any language in MCR 2.118 indicating that an AOM signed by a different expert should not be considered an amendment. And it is well settled that under MCR 2.118(A)(2), "[l]eave [to amend] shall be freely given when justice so requires." Kostadinovski , 321 Mich. App. at 743, 909 N.W.2d 907 (first alteration in original). Motions to amend should only be denied for "the following particularized reasons: (1) undue delay, (2) bad faith or dilatory motive on the part of the movant, (3) repeated failure to cure deficiencies by amendments previously allowed, (4) undue prejudice to the opposing party by virtue of allowance of the amendment, or (5) futility of the amendment." Lane v. KinderCare Learning Ctrs., Inc. , 231 Mich. App. 689, 697, 588 N.W.2d 715 (1998). There may be instances where seeking to substitute an affiant in an AOM implicates one of these reasons for denial. But none is present here, or at least defendants have not identified one.
Moreover, an amendment to change an expert affiant is clearly contemplated by the text of MCR 2.112(L)(2)(b) as amended. Again, the rule states:
[A]ll 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. [ MCR 2.112(L)(2)(b) (emphasis added).]
Significantly, MCR 2.112(L)(2)(b) does not limit itself to errors in the body of the AOM, but applies also to the "qualifications of the signer." Because such a correction will, for all intents and purposes, require that a different health professional sign the affidavit, the text of the rule allows a plaintiff to amend an AOM by submitting one signed by a properly qualified physician. Holding otherwise would render nugatory the rule's reference to the "qualifications of the signer." See Casa Bella Landscaping, LLC v. Lee , 315 Mich. App. 506, 510, 890 N.W.2d 875 (2016) ("Court rules, like statutes, must be read to give every word effect and to avoid an interpretation that would render any part of the [court rule] surplusage or nugatory.") (quotation marks and citation omitted; alteration in original). Moreover, requiring the defendant to promptly notify a plaintiff that the affiant is not properly qualified would serve no purpose if plaintiff was not also permitted to amend the affidavit so as to have a properly qualified expert.
Our dissenting colleague suggests that the language regarding the qualifications of the signer was intended only to allow correction of a clerical error in fully identifying the specialty of the affiant. However, the dissent fails to cite a single case in which such an error occurred, let alone one in which it was corrected by use of this provision. Nor has our research revealed any case in which an expert's qualifications complied with MCL 600.2169 but were misstated in the AOM. By contrast, there have been numerous cases involving the striking of AOMs on the ground that the expert lacked the relevant matching specialty. See, e.g., Kirkaldy v. Rim (On Remand) , 266 Mich. App. 626, 629, 702 N.W.2d 686 (2005), rev'd, 478 Mich. 581, 734 N.W.2d 201 (2007) ; Geralds v. Munson Healthcare , 259 Mich. App. 225, 227-229, 673 N.W.2d 792 (2003), overruled by Kirkaldy , 478 Mich. 581, 734 N.W.2d 201. We decline to conclude that the change in the court rule was adopted in order to address a problem that had never occurred and to ignore the problem that had repeatedly arisen.
In its ruling from the bench, the trial court did not address either of the amended court rules. It instead relied on two cases decided pursuant to the rules as they existed prior to the 2010 amendments. In Ligons v. Crittenton Hosp. , 490 Mich. 61, 81-85, 803 N.W.2d 271 (2011), the Supreme Court held that an AOM may not be amended because it was not a "pleading" under the preamendment version of MCR 2.118. However, the Ligons Court made explicitly clear that it was ruling solely on the law as it existed prior to the 2010 court rule amendments and explicitly "decline[d] to apply the amended versions" of the rules. Id. at 87-89, 803 N.W.2d 271. And, as noted, the amendment of MCR 2.118(D) specifically refers to "an amendment of an affidavit of merit." Thus, whether one considers an AOM to be a pleading is irrelevant under the amended rule because it specifically provides for AOM amendments in addition to amendments to pleadings. The other case relied on by the trial court was Lucas v. Awaad , 299 Mich. App. 345, 830 N.W.2d 141 (2013), which like Ligons was decided based on the law prior to the 2010 court rule revisions. In that case, the trial court ruled that the affidavits of meritorious defense (AOMDs) did not address the standard of care and so were defective. Id. at 356, 830 N.W.2d 141. The defendant-physician then sought to file an AOMD signed by himself as an amendment. Id. at 356-357, 830 N.W.2d 141. This Court rejected that effort on two grounds. First, it held that even if the defendant's own AOMD was considered an amendment it would not be permitted under MCR 2.118 prior to its 2010 revision. Id. at 375-377, 830 N.W.2d 141. The Court was careful to limit the scope of its decision, pointing out that a deficient AOM or AOMD may not be amended "under the version of MCR 2.118 in effect " at the time the case was filed. Id. at 377, 830 N.W.2d 141 (quotation marks and citation omitted; emphasis added). As previously discussed, MCR 2.118(D) now permits amendments to AOMs whether or not they are regarded as pleadings.
Indeed, the Court captioned the relevant section of the opinion, "THE NEW VERSIONS OF MCR 2.112 AND MCR 2.118 ARE NOT APPLICABLE." Ligons , 490 Mich. at 87, 803 N.W.2d 271.
The dissent concludes that the means to cure a defective affidavit provided in the court rules cannot apply to an error regarding expert qualifications because MCL 600.2912d provides that an incorrect expert match could still be deemed adequate if the attorney had a good-faith belief in its accuracy. Contrary to the dissent, we find no conflict, textual or otherwise, between the statute and the court rule. The statute provides a means to avoid dismissal due to an expert-qualification defect in the AOM, and the court rule provides another mechanism to do so that applies to all defects including those concerning expert qualifications. Further, the statute does not contain any language suggesting that a corrective mechanism adopted later by court rule regarding AOM defects should not apply to expert-qualification defects or that the statute's mechanism must be exclusive. And, as noted, MCR 2.112(L)(2)(b) employs the broadest possible language, providing for curative amendments as to "all challenges to an affidavit of merit" and specifically refers to amendments in order to address challenges to the "qualifications of the signer." (Emphasis added.) Lastly, under the statute, an expert-qualification error is the only defect that need not result in dismissal. The dissent's view that the court rule amendments apply to all defects except those involving expert qualifications would make such defects the only ones that do result in dismissal —exactly the opposite result intended by the statute.
Second, this Court in Lucas stated that the affidavit signed by the defendant himself was "not an amendment of a previously submitted affidavit" and was instead "an entirely new affidavit." Id. at 375-376, 830 N.W.2d 141. This conclusion also has no bearing on the issue as governed by the 2010 court rule changes. As discussed, precluding amendments related to the author of an affidavit would essentially nullify the reference in MCR 2.112(L)(2)(b) to "qualifications of the signer." Defendants do not contest that MCR 2.112(L)(2) provides for amendments to the text of the affidavit, including the particular medical specialty at issue. However, if the amendment to the AOM references a different specialty than the one identified in the original AOM, it must be signed by an expert in that different specialty, not the one referenced in the original AOM. Since a doctor can only spend more than 50% of his or her professional time in a single specialty, see MCL 600.2169(1), an error in defining the relevant specialty means that the original affiant cannot sign the amended affidavit. Therefore, an amended affidavit in which the relevant specialty is corrected will be ineffective unless it is signed by a different physician than the one who signed the original.
Unfortunately, the Court in Lucas did not explain the basis for its conclusion that an affidavit signed by a different expert is not an amendment of a previously filed affidavit. This single conclusory sentence was the entirety of the analysis provided. While the court rule amendments render this question moot, it is difficult to see why a change of affiant constitutes a "new" affidavit any more than does a change in theory, facts, and claims. Certainly, an amendment that adds a wholly new theory, a different claim, or additional facts could readily be termed "new" as it is not the same as the original.
The purpose of requiring an AOM "is to deter frivolous medical malpractice claims." Young v. Sellers , 254 Mich. App. 447, 452, 657 N.W.2d 555 (2002). See also King v. Reed , 278 Mich. App. 504, 519, 751 N.W.2d 525 (2008). In this case, that purpose has been met because an expert in defendants' specialty has attested to the merit of plaintiff's claim against Dr. Crawford. The identity of the expert is irrelevant to this purpose.
Our holding is buttressed by MCL 600.2301, which along with MCR 2.118 governs amendments under MCR 2.112(L)(2)(b). That statute makes clear that amendments must be permitted to correct any defect so long as the substantial rights of the other party are not violated:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in
such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just , at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties. [ MCL 600.2301 (emphasis added).]
The Legislature's language makes clear that amendments are to be permitted as to "any process, pleading or proceeding" and offers no hint that AOMs fall outside its scope. Id. (emphasis added). Moreover, it requires a showing of actual prejudice to deny a motion to amend. Furr v. McLeod , 304 Mich. App. 677, 704, 848 N.W.2d 465 (2014), rev'd in part on other grounds sub nom Tyra v. Organ Procurement Agency of Mich. , 498 Mich. 68, 74, 869 N.W.2d 213 (2015) ("Generally speaking, an error or defect affects substantial rights when a party incurs prejudice."). Defendants do not explain how they are prejudiced by the substitution of a different affiant, nor do they explain why such an amendment is so inherently prejudicial to the opposing party that it should be precluded as a matter of law.
Finally, we note that the 2010 court rule amendments were adopted, at least in part, to address concerns about medical malpractice cases being dismissed on the basis of AOM defects without providing an opportunity to cure. Under preamendment caselaw, any defect in an AOM was likely to subject a plaintiff to dismissal with prejudice regardless of the merits or considerations of substantive justice. As reflected in their plain language, the 2010 court rule changes were intended to ensure plaintiffs in medical malpractice cases have an opportunity to cure any defect in an AOM. We see no basis to apply the rule so as to frustrate its purpose.
In her concurrence to the adoption of the 2010 amendments of 2.112 and MCR 2.118, then Chief Justice Kelly explained that the goal was to apply the amendment policy governing all other civil actions to medical malpractice cases:
[T]he court rule amendments merely bring medical malpractice procedural requirements in line with those applicable to other civil actions. As long as the amendment added a claim or a defense that arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading, our court rules already permitted the relation back of amendments of pleadings. The court rule amendments adopted today merely clarify that relation back includes medical malpractice claims. Indeed, there is no legal justification for preventing a party in a medical malpractice action from amending an affidavit of merit or an affidavit or meritorious defense when parties in other actions are freely and routinely permitted to do so. [485 Mich cclxxv, cclxxviii ( Kelly , C.J., concurring).]
The controlling caselaw prior to the court rule amendments held that if an AOM was found defective, the complaint filed with it was considered a nullity, meaning that it did not toll the limitations period, which would continue to run and often expired before the time the defendant raised his or her challenge. See Mouradian v. Goldberg , 256 Mich. App. 566, 664 N.W.2d 805 (2003), overruled by Kirkaldy , 478 Mich. 581, 734 N.W.2d 201 ; Geralds , 259 Mich. App. 225, 673 N.W.2d 792. Indeed, a defendant could simply sandbag the plaintiff, i.e., wait for the limitations period to expire before raising the challenge and thereby deny the plaintiff any attempt to refile the case. Following the Supreme Court decision in Kirkaldy , 478 Mich. 581, 734 N.W.2d 201, the harshness of this rule was moderated but still required that the case be refiled, which often required a plaintiff to locate and retain a new expert, provide the expert with the relevant materials, have the expert review them, draft an AOM based on the expert's findings, have the expert sign the AOM in the presence of a notary and return it to counsel before the case could be refiled. As a practical matter, those cases that had little time remaining in the limitations period when filed were at risk of being extinguished regardless of their merits. Moreover, requiring refiling as opposed to permitting amendments was judicially inefficient as it involved starting the entire process over again.
Rather than attempting to determine the meaning of "amendment" in the context of the controlling court rule, the dissent would decide the case based on a definition from a law dictionary that considers the word in a vacuum and not in the context of the relevant text. Moreover, the dissent argues that an amendment can only consist of "minor revision[s]." However, even the dictionary definition on which the dissent relies allows for more substantive changes, as it provides that it is only "usu[ally]" that the revision or addition is "minor." Black's Law Dictionary (11th ed.). Restricting amendments to "minor revisions" would have a very broad and disruptive effect: it would bar the filing of amended complaints that add new theories, factual allegations, or parties.
In sum, we hold that under MCR 2.112(L)(2)(b), an AOM may be amended by submitting an affidavit signed by a different expert when there has been a challenge to the "qualifications of the signer." Such an amendment relates back to the original filing. MCR 2.118(D). The trial court abused its discretion by denying plaintiff's motion to amend because that decision was based on an erroneous interpretation of the court rules. See Denton v. Dep't of Treasury , 317 Mich. App. 303, 314, 894 N.W.2d 694 (2016) ("An error of law necessarily constitutes an abuse of discretion.").
We reverse the grant of summary disposition and direct the trial court on remand to accept the amended AOM for filing. We do not retain jurisdiction. As the prevailing party, plaintiff may tax costs. MCR 7.219(A).
Cavanagh, J., concurred with Shapiro, J.
Cameron, J. (dissenting)
Plaintiff filed a defective affidavit of merit (AOM) with her complaint in support of her medical malpractice claim. The defect in the AOM was significant: the doctor who signed the affidavit lacked the statutorily required qualifications necessary to support plaintiff's claims. More than six months after the complaint was filed, plaintiff moved the trial court to "amend" her AOM with a new AOM signed by a different doctor who was qualified in an entirely different medical specialty. Not surprisingly, the trial court denied plaintiff's motion to amend, concluding that the substitution of a different healthcare professional with different qualifications in a different medical specialty is not an amendment of the AOM previously filed; rather, it is the filing of a new AOM. Consequently, the trial court held that the second AOM could not relate back to the filing date of the original AOM and dismissed the claim. In reversing the trial court, the majority broadly interprets MCR 2.112(L)(2)(b) as permitting plaintiff to cure a defective AOM so long as the "proposed amendment arose out of the same conduct as the conduct described in the original AOM." I disagree with the majority's expansive interpretation of MCR 2.112(L)(2)(b) and its conclusion that the substitute AOM constitutes an amendment. Therefore, I respectfully dissent. MCL 600.2912d(1) requires a complaint alleging medical malpractice to be filed with an AOM "signed by an expert who the plaintiff's attorney reasonably believes meets the requirements of MCL 600.2169." Grossman v. Brown , 470 Mich. 593, 598, 685 N.W.2d 198 (2004) (emphasis omitted). MCL 600.2169 requires, among other things, that the AOM be signed by a healthcare professional "in the same specialty as the [defendant]." The purpose of this requirement is to prevent frivolous medical malpractice claims. Dorris v. Detroit Osteopathic Hosp. Corp. , 460 Mich. 26, 47, 594 N.W.2d 455 (1999). In enacting MCL 600.2912d(1), which requires a reasonable belief that the requirements of MCL 600.2169 are satisfied, the Legislature "placed ‘enhanced responsibilities’ on medical malpractice plaintiffs." Ligons v. Crittenton Hosp. , 490 Mich. 61, 70-71, 803 N.W.2d 271 (2011), quoting Solowy v. Oakwood Hosp. Corp. , 454 Mich. 214, 228, 561 N.W.2d 843 (1997).
In this case, it is undisputed that plaintiff's affiant, Dr. James Vascik, was board-certified in a different specialty than defendant Dr. Kevin Crawford and that defendant Crawford used this defect to successfully challenge the AOM. The issue in this case is whether plaintiff's substitute AOM constitutes, as a matter of law, an amendment. I agree with the trial court that it was not an amendment.
As a preliminary matter, there is no dispute that AOMs may be amended and a properly amended AOM relates back to its original filing date. However, the majority does not cite any authority that distinguishes a properly amended AOM from a wholesale substitute AOM that is not an amendment. Instead, the majority reasons that MCR 2.112(L)(2)(b) does not place limits on the nature of amendments to AOMs and then turns to authority outside the AOM context to support its conclusion that plaintiffs are permitted to cure a defective AOM so long as the "proposed amendment arose out of the same conduct as the conduct described in the original AOM." In so concluding, the majority relies on MCR 2.118(D), which provides, in relevant part, that a claim will relate back to the date of the original pleading if the claim in the amended pleading "arose out of the conduct, transaction, or occurrence set forth ... in the original pleading." However, the majority disregards the fact that AOMs do not set forth claims. Rather, AOMs provide factual support for the allegations in the complaint and serve to prevent frivolous medical malpractice claims. See Dorris , 460 Mich. at 47, 594 N.W.2d 455. Further, by treating all requests to amend the same, the majority blurs the legislative distinction between amendments of AOMs and the amendments of pleadings.
MCR 2.118(A)(2) provides that "a party may amend a pleading only by leave of the court or by written consent of the adverse party." Although an AOM is not a pleading, it is an attachment that must be filed along with a plaintiff's complaint, MCL 600.2912d(1), and the AOM is therefore subject to amendment under MCR 2.118(A)(2). Amendments of an AOM "relate[ ] back to the date of the original filing of the affidavit." MCR 2.118(D). See also Jones v. Botsford Continuing Care Corp. , 310 Mich. App. 192, 222, 871 N.W.2d 15 (2015) ( Donofrio , P.J., concurring in part and dissenting in part) ("While an affidavit of merit is not a ‘pleading’ under MCR 2.110(A), MCR 2.112(L)(2)(b), taken together with MCR 2.118(D), allows an affidavit of merit to be amended, and that amendment relates back to the date of the original filing of the affidavit."). Thus, in order to relate back to the date of the original filing of the AOM, the change to the AOM must constitute an amendment.
Consequently, the majority's reliance on MCR 2.118(D) is misplaced, and the majority's holding disregards the plain language of MCR 2.112(L)(2).
This Court reviews de novo whether a trial court properly interpreted and applied the relevant court rule. Henry v. Dow Chem. Co. , 484 Mich. 483, 495, 772 N.W.2d 301 (2009). Court rules are interpreted according to their plain language. Id. The term "may" generally designates discretion, Walters v. Nadell , 481 Mich. 377, 383, 751 N.W.2d 431 (2008), and the word "and" is "a conjunction" that means "with," "as well as," and "in addition to," Amerisure Ins. Co. v. Plumb , 282 Mich. App. 417, 428, 766 N.W.2d 878 (2009). "Court rules ... must be read to give every word effect and to avoid an interpretation that would render any part of the [court rule] surplusage or nugatory." See Casa Bella Landscaping, LLC v. Lee , 315 Mich. App. 506, 510, 890 N.W.2d 875 (2016) (quotation marks and citation omitted; alteration in original).
MCR 2.112(L)(2)(b) provides, in relevant part:
[A]ll 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. [Emphasis added.]
Therefore, under MCR 2.112(L)(2)(b), the trial court has discretion to permit an amendment of an AOM only if the requirements of both MCR 2.118 and MCL 600.2301 are met.
In reaching its conclusion, the majority does not define the term "amendment" and does not apply any definition to the facts at issue in this case. Instead, the majority focuses on the factors that a trial court must consider after the court determines that the proposed change to a pleading constitutes an amendment. In doing so, the majority fails to apply well-established rules relating to the interpretation of court rules, which include consulting dictionary definitions when a court rule does not define a term. See Halloran v. Bhan , 470 Mich. 572, 578, 683 N.W.2d 129 (2004). I believe that the majority's failure to do so contributes to its flawed interpretation and application of MCR 2.112(L)(2)(b).
The majority notes that under MCR 2.118(A)(2), a party may amend a pleading by leave of the court and that such "[l]eave shall be freely given when justice so requires" so long as certain particularized reasons do not exist. In relying on MCR 2.118(A)(2) and caselaw relating to the amendment of pleadings, the majority fails to first analyze whether the substitute AOM constituted an amendment.
Black's Law Dictionary (11th ed.) defines "amendment" as "a formal and usu[ally] minor revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument; specif[ically], a change made by addition, deletion, or correction; esp[ecially], an alteration in wording." Similarly, Merriam-Webster's Collegiate Dictionary (11th ed.) defines "amendment" as "an alteration proposed or effected by" the process of amendment; "amend" is also a verb, meaning "to alter formally by modification, deletion, or addition."
Plaintiff's second AOM was not an amendment under any commonly understood sense of the word. Plaintiff did not seek to make an addition, deletion, or correction to the AOM that was filed with the complaint. Rather, plaintiff sought to replace the original AOM with a different AOM signed by Dr. John Joseph Regan, an orthopedic surgeon whose medical specialty matched that of defendant Crawford. The wholesale substitution of affiants in different medical specialties cannot be considered a "minor revision or addition" of wording to the original AOM. Because the definition of amendment does not contemplate the substitution of one AOM with a new AOM that is signed by a different affiant in a different specialty, Dr. Regan's AOM cannot be considered an amendment within the meaning of MCR 2.112(L)(2)(b) and MCR 2.118.
Nonetheless, the majority reasons that "for all intents and purposes," a successful challenge to the qualifications of the signer requires a plaintiff to submit a new AOM authored by a different affiant. Therefore, the majority argues, because MCR 2.112(L)(2)(b) permits amendment of AOMs when the qualifications of the signer are successfully challenged and because MCR 2.118(D) does not place limitations on the nature of the amendment, the plain text of the rules requires the trial court to accept the replacement AOM as an amendment. In so concluding, the majority fails to take into consideration that the Legislature placed special restrictions on when a claim can proceed despite the fact that the expert witness who signed the AOM did not meet the requirements of MCL 600.2169.
Under MCL 600.2912d(1), a plaintiff's attorney in a medical malpractice action is required to file "an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under [MCL 600.]2169." (Emphasis added.) Thus, pursuant to MCL 600.2912d(1), a plaintiff's attorney must only reasonably believe that the proposed expert meets the requirements for an expert witness. See Jones v. Botsford Continuing Care Corp. , 310 Mich. App. 192, 200, 871 N.W.2d 15 (2015). "[T]he issue is not whether the attorney's judgment proves to be incorrect, but rather whether the attorney's belief, though erroneous in hindsight, was reasonable at the time." Id. at 201, 871 N.W.2d 15. If a plaintiff's attorney did not possess a reasonable belief that the expert met the requirements under MCL 600.2169, the medical malpractice action must be dismissed. See Bates v. Gilbert , 479 Mich. 451, 462, 736 N.W.2d 566 (2007).
The majority entirely fails to consider MCL 600.2912d(1) despite the fact that it sets forth the circumstances under which the court may nevertheless accept an AOM when a party has successfully challenged the qualifications of a signer of an AOM. Because the rules of statutory construction require courts to "construe an act as a whole to harmonize its provisions and carry out the purpose of the Legislature," Macomb Co. Prosecutor v. Murphy , 464 Mich. 149, 159, 627 N.W.2d 247 (2001), I believe that it is necessary to consider whether the trial court properly interpreted and applied MCL 600.2912d(1) to the facts of this case.
I conclude that the trial court properly determined that plaintiff's attorney did not have a reasonable belief that Dr. Vascik met the requirements of an expert witness. It is undisputed that before the alleged malpractice, defendant Crawford had previously treated plaintiff for knee issues. The trial court found that "a simple Google search would have uncovered" that defendant Crawford is board certified in orthopedic surgery and specializes solely in orthopedic surgery, including hip and knee orthopedic surgery. Given the widespread availability of information on the Internet, even a cursory search would have revealed to plaintiff's attorney that defendant Crawford was an orthopedic surgeon who specialized in orthopedic surgery. Plaintiff correctly notes that defendant Crawford assisted Dr. Aria Sabit in performing plaintiff's spinal surgery and that Dr. Sabit is a neurosurgeon. However, plaintiff presents no evidence in support of the notion that defendant Crawford engaged in the practice of neurosurgery, particularly in light of the fact that defendant Crawford operated alongside Dr. Sabit, a neurosurgeon. Plaintiff also fails to present logical argument in favor of a finding that defendant Crawford practiced outside of his specialty in orthopedics. Moreover, defendant Crawford's response to plaintiff's presuit notice of intent contained information that defendant Crawford was an orthopedic surgeon. According to defendant Crawford's response to the notice of intent, "[t]he applicable standard of care for a board certified orthopedic surgeon assisting a neurosurgeon in the performance of spinal surgery [is] of a physician board certified in orthopedic surgery." Accordingly, given the information available to plaintiff's counsel before the suit was filed, plaintiff's counsel could not have reasonably believed that Dr. Vascik (a neurosurgeon) met the requirements for an expert witness with respect to defendant Crawford under MCL 600.2169.
Beaumont Hospital, Kevin Crawford < https://doctors.beaumont.org/provider/Kevin+Crawford/225913> (accessed January 8, 2020) [https://perma.cc/4Q2P-LZ4J].
Had plaintiff's counsel possessed a reasonable belief that Dr. Vascik was qualified to sign the AOM, the action would have been able to proceed despite the failure to comply with MCL 600.2169. The majority's conclusion that the trial court possessed an unbounded ability to permit the wholesale substitution of AOMs ignores the fact that, in enacting MCL 600.2912d(1), the Legislature "placed ‘enhanced responsibilities’ on medical malpractice plaintiffs." See Ligons , 490 Mich. at 70-71, 803 N.W.2d 271 (citation omitted). As already discussed, this enhanced responsibility requires a plaintiff's attorney to possess a reasonable belief that an expert meets the requirements of MCL 600.2169. The majority's expansive reading of MCR 2.112(L)(2)(b) subverts the requirements of MCL 600.2912d(1) and holds that even if a plaintiff's attorney did not reasonably believe that the proposed expert met the requirements of an expert witness, the trial court should nonetheless permit the action to proceed. In so holding, the majority essentially concludes that a plaintiff's attorney need not investigate whether a potential expert meets the requirements of MCL 600.2169 before filing a medical malpractice action and that, in the event the expert's qualifications are successfully challenged, amendment must be permitted regardless of whether the plaintiff's attorney possessed a reasonable belief that the signer of the AOM was qualified under MCL 600.2169. The majority's interpretation of MCR 2.112(L)(2)(b) essentially renders MCL 600.2169 and MCL 600.2912d(1) nugatory in that it permits plaintiffs to file complaints without conforming AOMs.
Although the majority notes that locating the appropriate expert can be challenging, the Legislature took this into consideration when enacting MCL 600.2912d(2). MCL 600.2912d(2) "allows, upon a showing of good cause, an additional twenty-eight days to obtain the required affidavit of merit. During this period, the statute will be tolled and summary disposition motions on the ground of failure to state a claim should not be granted." Solowy , 454 Mich. at 229, 561 N.W.2d 843. Consequently, the majority fails to acknowledge that its concerns have already been addressed by the Legislature in its enactment of MCL 600.2912d(2).
Further, I disagree with the majority that my reading of MCR 2.112(L)(2)(b) would render the phrase "qualifications of the signer" nugatory. I agree that in some cases, a plaintiff could be required to procure an entirely different expert witness after a defendant has successfully challenged the qualifications of the medical professional who signed the original affidavit of merit. However, in certain cases, an expert's qualifications can be corrected or supplemented within the original affidavit of merit. In such cases, a new affidavit from a new affiant would not need to be filed in order for a plaintiff to continue to pursue his or her medical malpractice action. For example, in the event that an expert's qualifications are not described accurately or completely in the AOM, it would certainly be appropriate for a trial court to permit amendment of the AOM. In such circumstances, the plaintiff would not be seeking to replace the original expert's AOM. Rather, the plaintiff would be seeking to correct an error or provide additional facts within the original AOM. Thus, reading MCR 2.112(L)(2)(b) to not permit entirely new AOMs does not render the phrase "qualifications of the signer" nugatory.
Finally, the majority also relies on MCL 600.2301, which provides as follows:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties. [Emphasis added.]
"The language in MCL 600.2301 requiring a court to disregard ‘any’ errors or defects if no substantial rights are affected plainly and unambiguously reaches both content and noncontent errors or defects, as the term ‘any’ is all-inclusive." Furr v. McLeod , 304 Mich. App. 677, 702-703, 848 N.W.2d 465 (2014), rev'd in part by Tyra v. Organ Procurement Agency of Mich. , 498 Mich. 68, 869 N.W.2d 213 (2015). The Court in Furr noted that Supreme Court precedent emphasizes that MCL 600.2301 "aims to abolish technical errors in proceedings and to have cases disposed of as nearly as possible in accordance with the substantial rights of the parties." Furr , 304 Mich. App. at 702, 848 N.W.2d 465 (quotation marks and citation omitted).
Even if I were to accept the majority's conclusion that MCL 600.2301 applies to the facts at issue in this case, it would not be dispositive given that plaintiff must comply with both MCR 2.118 and MCL 600.2301 in order to be entitled to relief under MCR 2.112(L)(2)(b). Because I conclude that the substitution of affiants based on these facts cannot be considered a "minor revision or addition" of wording so as to constitute an amendment, I would conclude that MCL 600.2301 cannot be applied to save plaintiff's claim.
The word "and" is "a conjunction" that means "with," "as well as," and "in addition to." Amerisure Ins. Co. , 282 Mich. App. at 428, 766 N.W.2d 878.
For these reasons, I would affirm the trial court's decision to deny plaintiff's motion for leave to amend the affidavit of merit.