Recently, The Michigan Court of Appeals published a 2-1 opinion addressing whether filing an affidavit of merit (AOM) signed by a new expert in a different specialty constitutes an "amendment" under MCR 2.112(L)(2)(b) in a medical malpractice action. Legion-London v Crawford (Docket No. 344838). MCR 2.112(L)(2)(b) requires that "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 within 63 days..." The majority (Shapiro, J.; Cavanagh, J) held that a new AOM signed by a new expert in a new specialty constitutes an "amendment" under MCR 2.112(L)(2)(b) that relates back to the filing of the complaint under MCR 2.118(D).
In Legion-London, the plaintiff filed an AOM signed by a neurosurgeon containing criticisms of the defendant orthopedic surgeon, Kevin Crawford, DO. Dr. Crawford timely filed a motion for summary disposition challenging the AOM on the grounds that he is an orthopedic surgeon—not a neurosurgeon—and that Plaintiff's expert didn't meet the requirements of MCL 600.2169. Dr. Crawford contended that the affidavit was insufficient to toll the statute of limitations and that the statute of limitations had expired. The plaintiff sought leave to file an "amended" AOM signed by a new orthopedic surgery expert. The trial court denied the plaintiff's request concluding that a new affidavit signed by a new expert did not constitute an "amendment" under MCR 2.112(L)(2)(b).
On appeal, the majority reversed the trial court and held that a new AOM signed by a new expert constitutes an "amendment." The majority reasoned that the inclusion of language in the rule providing an ability to challenge "the qualifications of the signer" contemplates inclusion of a change in the identity of the signer in the definition of "amendment" as used in MCR 2.118(D) and MCR 2.112(L)(2)(b). The majority noted that a successful challenge to the qualifications of the signer will "require that a different health care professional sign the affidavit." The majority opined that a contrary holding would render the language "including challenges to the qualifications of the signer" from the rule nugatory.
The dissent (Cameron, J.) disagreed "with the majority's expansive interpretation of MCR 2.112(L)(2)(b) and its conclusion that a substitute AOM constitutes an amendment." The dissent consulted dictionary definitions of the term "amendment" and opined that the plaintiff's "second AOM was not an amendment under any commonly understood sense of the word." The dissent also persuasively contended that the majority opinion failed to consider the requirement in MCL 600.2912d(1) that an attorney have a reasonable belief that the affiant meets the requirements of MCL 600.2169. The dissent observed that "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 could should nonetheless allow the action to proceed."
The Legion-London majority's interpretation of MCR 2.112(L)(2)(b) as permitting the filing of an entirely new AOM signed by new expert in a different specialty as an "amendment" under MCR 2.118(D) eliminates what little existing incentive medical malpractice defendants had to challenge AOMs. MCL 600.2912d(1) already provided a low threshold standard requiring only that the plaintiff's attorney have a reasonable belief that the affiant expert met the requirements of MCL 600.2169. This statutory provision permitting challenge will have little application in the future given the Legion-London holding permitting the filing a new affidavit of merit signed by a new expert. The defendants have 42 days from the date of the opinion to file an application for leave to appeal with the Michigan Supreme Court.
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