NOI and Affidavit of merit - medical malpractice cases

Court rule affected - MCR 2.112 and 2.118
Admin no. - 2009-13
Effective - 5-1-10

Another amendment dealing with notices of intent and affidavits in medical malpractice cases - see the previous proposal. This one adds a new subsection (L) to 2.112, requiring that:

• Any challenges to the sufficiency of a notice of intent be filed by a defendant on or before the date of filing his first response (answer or motion)
  
• Any challenges to an affidavit of merit or affidavit of meritorious defense, including challenges to the qualifications of the affiant, be filed within 63 days of the filing of the affidavit. If the court finds the affidavit deficient, it shall allow it to be amended unless it finds that amendment would not be justified.
  

It also adds language to 2.118(D) specifying that an amendment of an affidavit of merit or meritorious defense would relate back to the date of the original filing.

Like the previous proposal, this one is designed to neutralize an entire series of rulings from the Supreme Court which have led to dismissals for failure to comply with the affidavit rules.
Link (to proposal)
Link to order adopting

Affidavits of merit - medical malpractice cases

Court rule affected - MCR 2.112(l)
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.