Admin no. - 2006-43, 2007-07
Issued - December 9, 2008
Comments open to - April 1, 2009
Would add a subsection (1) under subsection (l) that reads:
Sufficiency of Affidavit. An affidavit of merit filed under MCL 600.2912d is presumed to be valid and tolls the period of limitations. However, if the court determines upon a party’s challenge to the sufficiency of the affidavit that the affidavit is deficient, the court shall dismiss the action without prejudice. Following dismissal, the plaintiff may file a complaint accompanied by a conforming affidavit of merit within the time that remains in the period of limitations.
Note: This would reconcile the series of sometimes conflicting decisions on this issue in favor of an automatic tolling rule, conforming to the decision in Kirkaldy v Rim, 478 Mich 581 (2007). This would overturn the decisions in cases such as Roberts v. Mecosta County Memorial Hospital, 470 Mich 679 (2004), which have held that a nonconforming affidavit does not toll the statute of limitations.
Note that this proposal was made in December 2008, before Justice Taylor was replaced by Justice Hathaway.
Link
Update: A comment by a Vice-President of ProAssurance, an active professional liability carrier in Michigan, makes the point that the proposal is not limited to procedural matters and that it impermissibly attempts to change substantive law.
Update: As of April 2010, this item is no longer on the Supreme Court's web site, indicating that it has been rejected.
