Background Facts
Candi Ottgen and her husband, Patrick Ottgen, brought a medical malpractice action against Abdalmaijid Katranji, M.D., and others, alleging that Katranji had negligently performed two thumb surgeries on Candi Ottgen on May 1, 2017, and July 23, 2017.
Plaintiffs filed the action on April 11, 2019, focusing their complaint on the first surgery, but they did not attach an affidavit of merit (AOM) to the complaint as required by MCL 600.2912d(1). On May 9, 2019, defendants moved for summary disposition under MCR 2.116(C)(7) pursuant to Scarsella v Pollak, 461 Mich 547 (2000), which held that filing a medical malpractice complaint without an AOM was ineffective to commence the action and thereby toll the two-year statutory limitations period.
Plaintiffs responded by filing an amended complaint with an AOM that had purportedly been executed on January 30, 2019, but was not attached to the original complaint because of a clerical error. Plaintiffs also separately requested permission to make the late filing and contended that it related back to the original complaint. The trial court held that Scarsella was inapplicable because the AOM was completed when the original complaint was filed and its omission from the filing was inadvertent. The trial court also permitted plaintiffs to file their late AOM and allowed it to relate back to the April 2019 complaint.
The Michigan Court of Appeals affirmed in part and reversed in part in an unpublished per curiam opinion issued May 20, 2021, holding that Scarsella applied and, accordingly, that plaintiffs’ complaint was untimely with regard to the first surgery, rendering the April 2019 complaint ineffective and leaving nothing for the subsequently filed May 13, 2019 amended complaint to relate back to. Because the dismissal was on statute-of-limitations grounds, the Michigan Court of Appeals held that it was with prejudice.
The Michigan Supreme Court granted plaintiffs’ application for leave to appeal, asking the parties to address whether Scarsella was correctly decided and whether the plaintiffs’ complaint should have been dismissed without prejudice.
Michigan Supreme Court Opinion
The Michigan Supreme Court held in its decision filed on July 14, 2023 that Scarsella was erroneously decided and failed to survive a stare decisis analysis, and it was therefore overruled. Filing an AOM under MCL 600.2912d(1) is not required to commence a medical malpractice action and toll the statutory limitations period. Instead, the normal tolling rules apply to medical malpractice actions, and tolling occurs upon the filing of a timely served complaint. A failure to comply with MCL 600.2912d(1) can still be a basis for dismissal of a case; however, the dismissal cannot be based on statute-of-limitations grounds. Because the courts below have not considered the nature of dismissals for violations of MCL 600.2912d(1), the case was remanded to the trial court for further proceedings.
Source Ottgen v. Katranji, M.D., MSC No. 163216.
If you or a loved one may have been injured (or worse) as a result of medical malpractice in Michigan or in another U.S. state, you should promptly find a Michigan medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical negligence claim for you and represent you or your loved one in a medical negligence case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.