Continuing a recent trend of granting leave in medical malpractice cases, the Michigan Supreme Court recently granted the plaintiff’s application for leave in Ottgen v Katranji to address whether its 2000 opinion in Scarsella v Pollak, 461 Mich 547 (2000) was “correctly decided.”  In Scarsella, the Michigan Supreme Court held that a timely complaint filed without the affidavit of merit required by MCL 600.2912d does not toll the statute of limitations.  Chief Justice McCormack and Justice Viviano recently expressed support for overruling Scarsella in another opinion.  See Progress Michigan v Attorney General, 506 Mich 74 (2020) (McCormack, concurring).  The grant of leave in Ottgen suggests there may now be a majority in favor of overruling Scarsella.

In Ottgen, Cindi Ottgen underwent thumb surgery with Dr. Katranji on both May 1, 2017 and July 23, 2017.  She filed a complaint alleging medical malpractice on April 11, 2019, but failed to file an affidavit of merit with the complaint.  On May 9, 2019, the defendants, relying on Scarsella, moved for summary disposition contending that the complaint failed to commence an action or toll the statute of limitations due to the complete failure to file an affidavit of merit.  Four days later, on May 13, 2019, Ottgen filed an amended complaint with an affidavit of merit that had been executed on January 30, 2019.  Two days later, Ottgen filed an emergency motion seeking leave to file a late affidavit of merit contending that the affidavit wasn’t filed with the complaint due to a clerical error.  The trial court eventually denied the defendants’ motion concluding that Scarsella was distinguishable because there was an affidavit of merit “in existence” at the time the complaint was filed.

The Court of Appeals granted the defendants’ application for leave to appeal.  The Ottgen panel found that the trial court erred by concluding that an exception to the holding of Scarsella could be found if the plaintiff is “in possession” of an executed affidavit at the time he/she filed a complaint.  The panel emphasized the Supreme Court’s rationale in Scarsella that permitting a plaintiff to file late affidavits of merit that relate back to the complaint would effectively repeal the affidavit of merit requirement of MCL 600.2912d.  Therefore, any claims based on the first May 1, 2017 surgery were time barred.  However, the panel found that the amended complaint filed on May 13, 2019, was timely as to claims based on the second July 23, 2017 surgery and affirmed the trial court’s ruling as to those claims.

An opinion or order from the Michigan Supreme Court overruling Scarsella would effectively complete the erosion of the significance of the affidavit of merit requirement of MCL 600.2912(d).  Under the 2010 amendments to MCR 2.112(L) and MCR 2.118, a plaintiff is already entitled to freely amend a defective affidavit of merit and obtain relation back to the time of the complaint.  Under the recent Court of Appeals opinion in Legion-London v Surgical Institute, 331 Mich App 364 (2020), a new affidavit of merit signed by a different expert is now considered an “amendment” for purposes of MCR 2.118.  If the Supreme Court overrules Scarsella, not only will there be no meaningful consequence for filing a defective affidavit of merit or an affidavit signed by the wrong expert, there will be no meaningful consequence for failing to file an affidavit of merit altogether.