Kim L Wilkerson v. Chelsea Chiropractic Center ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KIM L. WILKERSON, UNPUBLISHED
August 24, 2023
Plaintiff-Appellee,
v No. 361263
Washtenaw Circuit Court
CHELSEA CHIROPRACTIC CENTER and JAMES LC No. 21-001299-NH
G. DUNCAN II, D.C.,
Defendants-Appellants.
Before: GADOLA, P.J., and M. J. KELLY and SWARTZLE, JJ.
PER CURIAM.
Plaintiff filed his complaint for medical malpractice without attaching a valid and timely
affidavit of merit. The trial court denied defendants summary disposition when they moved for
dismissal based on the complaint’s lack of an accompanying valid and timely affidavit of merit.
We reverse.
On May 28, 29, and 30, 2019, plaintiff received treatment from Dr. James Duncan II at
Chelsea Chiropractic Center. Plaintiff subsequently visited a hospital emergency room, where he
was diagnosed with a compression fracture in his spine. Plaintiff alleged that defendants were
responsible for the compression fracture or had exacerbated his injury by not properly diagnosing
the injury.
On May 24, 2021, plaintiff mailed defendants his notice of intent to sue for medical
malpractice, and he filed his complaint on November 23, 2021. Along with his complaint, plaintiff
moved for an additional 28 days to file the required affidavit of merit under MCL 600.2912d(2).
Plaintiff then emailed a “declaration of merit” to defendants on December 22, 2021.
The trial court granted plaintiff’s motion for additional time on January 7, 2022, and
plaintiff filed his “declaration of merit” with the trial court on January 10, 2022. Defendants
moved for summary disposition under MCR 2.116(C)(7), arguing that the 28-day extension runs
from the date of the complaint and, thus, plaintiff’s 28-day extension ended on December 21, 2021.
Further, defendants argued that plaintiff’s “declaration of merit” was not valid because it did not
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indicate that it was made before a person having the authority to administer an oath or affirmation
to the party making the declaration.
The trial court denied defendants’ motion because it found that plaintiff’s affidavit was
timely. Defendants now submit their interlocutory appeal by leave granted. Kim Wilkerson v
Chelsea Chiropractic Ctr, unpublished order of the Court of Appeals, issued October 18, 2022
(Docket No. 361263).
“We review de novo a trial court’s decision to grant or deny a motion for summary
disposition.” Sherman v City of St Joseph, 332 Mich App 626, 632; 957 NW2d 838 (2020)
(citations omitted). In reviewing a trial court’s decision under MCR 2.116(C)(7), we consider the
record evidence to determine whether the “claim is barred by an applicable statute of limitations.”
Nuculovic v Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010). This Court also reviews de novo
matters of statutory interpretation. Titan Ins Co v Hyten, 491 Mich 547, 553; 817 NW2d 562(2012).
MCL 600.2912d(1) requires a plaintiff to submit an affidavit of merit with the complaint
for medical malpractice. It reads in relevant part:
(1) Subject to subsection (2), the plaintiff in an action alleging medical malpractice
or, if the plaintiff is represented by an attorney, the plaintiff’s attorney shall file
with the complaint an affidavit of merit signed by a health professional who the
plaintiff’s attorney reasonably believes meets the requirements for an expert
witness under section 2169.
* * *
(2) Upon motion of a party for good cause shown, the court in which the complaint
is filed may grant the plaintiff or, if the plaintiff is represented by an attorney, the
plaintiff’s attorney an additional 28 days in which to file the affidavit required under
subsection (1).
Even though our Supreme Court recently held that “filing an [affidavit of merit] under
MCL 600.2912d(1) is not required to commence a medical malpractice action and toll the statutory
limitations period,” it also made clear that “[t]he [affidavit of merit] requirement is mandatory and
must be followed. No one disputes this.” Ottgen v Katranji, ___ Mich ___; ___ NW2d ___ (2023)
(Docket No. 163216), slip op at 3, 6. “Plaintiffs…still have to file the [affidavit of merit] and their
claims might be dismissed when they fail to do so.” Id. at 6 (cleaned up). “Our Supreme Court’s
discussion of the statute likewise articulates the need for an [affidavit of merit] at the
commencement of an action, unless an additional 28 days are provided by the granting of a motion
under MCL 600.2912d(2).” Castro v Goulet, 312 Mich App 1, 6; 877 NW2d 161 (2015). “By
statute and by precedent, the 28-day period must run from the date the complaint is filed,
irrespective of when the motion is granted.” Id. (emphasis added).
Further, the unambiguous statutory language of MCL 600.2912d(1) demands that the
plaintiff or his attorney “shall file with the complaint an affidavit of merit signed by a health
professional.” Holmes v Michigan Capital Med Ctr, 242 Mich App 703, 706; 620 NW2d 319(2000) (citation omitted). “To constitute a valid affidavit, a document must be (1) a written or
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printed declaration or statement of facts, (2) made voluntarily, and (3) confirmed by the oath or
affirmation of the party making it, taken before a person having authority to administer such oath
or affirmation.” Id.In this case, it is not disputed that plaintiff filed his complaint on November 23, 2021.
Consequently, plaintiff had until December 21, 2021, to file his affidavit of merit with a 28-day
extension. Plaintiff admits that he did not email his “declaration of merit” to defendants until
December 22, 2021, and he did not file his “declaration of merit” with the trial court until January
10, 2022. Thus, plaintiff did not file his affidavit of merit within the 28-day extension.
Further, plaintiff’s “declaration of merit” did not indicate that it was made before a person
having the authority to administer an oath or affirmation to the party making the statement as
required by MCL 600.2912d(1). Id. Thus, even if this Court were to consider plaintiff’s
“declaration of merit” to be timely filed for the purposes of MCL 600.2912d(2), it was not a valid
affidavit.
Plaintiff failed to file a timely and valid affidavit of merit, and the trial court erred when it
denied defendants summary disposition because a timely and valid affidavit is required for a
medical malpractice action. See Ottgen, ___ Mich at ___, slip op 6; Holmes, 242 Mich App at
711.
Reversed and remanded for proceedings consistent with this opinion.
/s/ Michael F. Gadola
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
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