Stephanie Ann Zarzyski v. Joanna Lynne Nigrelli Do

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
STEPHANIE ANN ZARZYSKI, FOR PUBLICATION
June 24, 2021
Plaintiff-Appellant, 9:20 a.m.
V No. 352169
Crawford Circuit Court
JOANNA LYNNE NIGRELLI, D.O., MUNSON LC No. 19-010600-NH
HEALTHCARE GRAYLING, INC., doing business
as PRUDENVILLE COMMUNITY HEALTH
CENTER and MUNSON HEALTHCARE
GRAYLING HOSPITAL, SHAUN C. RAMSEY,
D.O., EMERGENCY PHYSICIANS MEDICAL
GROUP, PC, and STAT-RAD TRANSCRIPTION
AND MEDICAL EDITING SERVICES, INC.,
Defendants-Appellees.
Before: BOONSTRA, P.J., and MARKEY and SERVITTO, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff appeals by right the trial court’s orders granting
summary disposition in favor of defendants on the basis that the action was time-barred after
plaintiff failed to file an affidavit of merit (AOM) with her complaint. Plaintiff argued that she
was entitled to file an AOM within 91 days of filing her complaint under MCL 600.2912d(3)
because defendants, in violation of MCL 600.2912b(5), had failed to allow plaintiff access to all
medical records related to her malpractice claims within 56 days after defendants received the
notice of intent (NOI). The trial court concluded that defendants had allowed timely access to
plaintiff’s medical records by providing the paperwork and information necessary for plaintiff to
acquire the records, but plaintiff failed to follow through and take all of the steps required to obtain
the medical records. Plaintiff challenges that ruling on appeal. We hold that because plaintiff did
not file an AOM within 91 days of the filing of the complaint, summary dismissal is the proper
result regardless whether defendants violated MCL 600.2912b(5). Accordingly, although our
underlying reasoning differs from that proffered by the trial court, we affirm the orders granting
summary disposition to defendants under MCR 2.116(C)(7) because the action was barred by the
statute of limitations.
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Plaintiff’s medical malpractice action concerned medical treatment provided to her by
defendants on several visits that spanned a few years. The gist of the malpractice case was that
defendants’ negligence and misdiagnoses resulted in pancreatic injury and dysfunction. In
February 2019, plaintiff mailed a NOI to defendants, and defendants’ agents responded by
providing release authorizations and record request forms in late February. Ultimately, plaintiff
received some records but complained about not receiving billing and payment records, while
defendants maintained that plaintiff did not complete or fully complete the paperwork necessary
to obtain all of her records. On August 15, 2019, plaintiff filed the medical malpractice lawsuit
against defendants. The complaint contained the following allegation:
Defendants did not provide “all medical records related to the claim that
are in control of the health professional or health facility” (emphasis added)
within 56 days from their receipt of the notice of intent as required by MCL
600.2912b(5). As a result, Plaintiff is not required to file an affidavit of merit with
her Complaint. Instead, pursuant to MCL 600.2912d(3)[,] Plaintiff is given an
additional 9l days in which to file appropriate affidavits of merit.
We note that MCL 600.2912b(5), more fully stated, provides that “within 56 days after receipt of
[the NOI] . . ., the health professional or health facility shall allow the claimant access to all medical
records related to the claim that are in the control of the health professional or health facility.”
And MCL 600.2912d(3) provides that “[i]f the defendant in an action alleging medical malpractice
fails to allow access to medical records within the time period set forth in section 2912b([5]), the
[AOM] . . . may be filed within 91 days after the filing of the complaint.”
Defendants moved for summary disposition, arguing that plaintiff’s action was time-
barred. They maintained that the filing of the complaint did not toll the statute of limitations
because plaintiff failed to additionally file an AOM with the complaint. Defendants contended
that the limitations period had elapsed and that plaintiff was not entitled to the 91-day grace period
in MCL 600.2912d(3) because they had allowed the claimant—plaintiff—timely access to all of
her medical records for purposes of MCL 600.2912b(5). Defendants asserted that it was not their
fault that plaintiff failed to take the steps necessary to obtain the records after defendants provided
her with the appropriate preparatory paperwork. Plaintiff countered that written authorizations to
release the medical records were not needed and that defendants were affirmatively obligated
under MCL 600.2912b(5) to produce the records upon receipt of the NOI. The nature of the
parties’ arguments at the summary disposition hearing focused on the obligations that arise from
the language in MCL 600.2912b(5). The trial court agreed with defendants’ position and
summarily dismissed the lawsuit on the basis of the statute of limitations.
On appeal, plaintiff argues that the trial court erred by finding, for purposes of MCL
600.2912b(5), that defendants had provided plaintiff with timely access to all medical records
related to her claim that were in defendants’ control. “The question whether a cause of action is
barred by the applicable statute of limitations is one of law, which this Court reviews de novo.”
Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, PC v Bakshi, 483 Mich 345, 354; 771 NW2d 411
(2009). This Court also reviews de novo a trial court’s ruling on a motion for summary disposition.
Id. Summary dismissal is appropriate under MCR 2.116(C)(7) when an action is barred because
of the “statute of limitations.” In RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App
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678, 687; 762 NW2d 529 (2008), this Court recited the principles pertaining to a motion for
summary disposition brought pursuant to MCR 2.116(C)(7):
Under MCR 2.116(C)(7) . . ., this Court must consider not only the
pleadings, but also any affidavits, depositions, admissions, or other documentary
evidence filed or submitted by the parties. The contents of the complaint must be
accepted as true unless contradicted by the documentary evidence. This Court must
consider the documentary evidence in a light most favorable to the nonmoving
party. If there is no factual dispute, whether a plaintiff’s claim is barred under a
principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide.
If a factual dispute exists, however, summary disposition is not appropriate.
[Citations omitted.]
In Slis v Michigan, 332 Mich 312, 335-336; 956 NW2d 569 (2020), this Court recited the
well-established principles of statutory construction, observing:
This Court’s role in construing statutory language is to discern and ascertain
the intent of the Legislature, which may reasonably be inferred from the words in
the statute. We must focus our analysis on the express language of the statute
because it offers the most reliable evidence of legislative intent. When statutory
language is clear and unambiguous, we must apply the statute as written. A court
is not permitted to read anything into an unambiguous statute that is not within the
manifest intent of the Legislature. Furthermore, this Court may not rewrite the plain
statutory language or substitute its own policy decisions for those decisions already
made by the Legislature.
Judicial construction of a statute is only permitted when statutory language
is ambiguous. A statute is ambiguous when an irreconcilable conflict exists
between statutory provisions or when a statute is equally susceptible to more than
one meaning. When faced with two alternative reasonable interpretations of a word
in a statute, we should give effect to the interpretation that more faithfully advances
the legislative purpose behind the statute. [Quotation marks and citations omitted.]
“To commence a medical malpractice action, a plaintiff must file both a complaint and an
[AOM].” Young v Sellers, 254 Mich App 447, 451; 657 NW2d 555 (2002); see MCL
600.2912d(1). The filing of a complaint and an AOM “toll[s] the period of limitations until the
validity of the affidavit is successfully challenged in subsequent judicial proceedings.” Kirkaldy
v Rim, 478 Mich 581, 586; 734 NW2d 201 (2007) (quotation marks and citation omitted). But if
a plaintiff in a medical malpractice action “wholly omits” to file an AOM under MCL
600.2912d(1), “the filing of the complaint is ineffective, and does not work a tolling of the
applicable period of limitation.” Scarsella v Pollak, 461 Mich 547, 553; 607 NW2d 711 (2000).
Assuming, without deciding, that defendants failed to allow plaintiff access to all medical
records related to her claim that were in their control within 56 days after receiving the NOI under
MCL 600.2912b(5), plaintiff failed to file an AOM within 91 days of the complaint for purposes
of MCL 600.2912d(3). Again, MCL 600.2912d(3) provides that “[i]f the defendant in an action
alleging medical malpractice fails to allow access to medical records within the time period set
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forth in section 2912b([5]), the [AOM] . . . may be filed within 91 days after the filing of the
complaint.” This language is plain and unambiguous. We fully recognize that the parties were
litigating the issue whether MCL 600.2912d(3) was implicated in this case, but the clock began
running on the 91-day period when the complaint was filed on August 15, 2019. On the day that
the court ruled from the bench granting the motions for summary disposition, November 4, 2019,
the 91 days had not yet passed, but the period had expired by the time the orders granting summary
disposition were entered and reconsideration was denied. Had the court ruled in plaintiff’s favor
on November 4, 2019, it would have been necessary for plaintiff to obtain an AOM in very short
fashion. Because the litigation was not over at that point, as the orders granting summary
disposition had not yet been entered and an unsuccessful motion for reconsideration was
forthcoming, plaintiff still had the opportunity to file an AOM.
MCL 600.2912d(3) simply does not accommodate for time spent litigating its application;
there is no tolling language with respect to the 91-day period.1 We also note that a medical
malpractice plaintiff needs to file an AOM within 91 days even if a defendant conclusively did not
allow any access to medical records, subject, perhaps, to MCL 600.2912d(2). It appears that the
Legislature may not have fully contemplated the possible problems that might arise under MCL
600.2912d(3).2 Although our ruling may seem unfair, we are merely applying the plain language
of the statute, and it is up to the Legislature to potentially amend the statutory language in order to
address the circumstances presented in this case and other scenarios. As the statute currently
provides, a plaintiff would be wise to procure an AOM, if feasible, during the period in which the
parties are litigating the issue regarding whether MCL 600.2912d(3) is implicated. Indeed, when
plaintiff filed her complaint and took the position that she was entitled to an additional 91 days to
file an AOM because defendants had failed to comply with MCL 600.2912b(5), it was incumbent
on her to file an AOM within 91 days, and she proceeded at her own peril in not doing so.3
Plaintiff did not file an AOM consistent with MCL 600.2912d(1) (with complaint) or (3)
(within 91 days of complaint). Therefore, plaintiff never properly commenced her medical
1
We do note that “[u]pon 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” AOM. MCL 600.2912d(2). Plaintiff did not
invoke this provision. We take no position regarding whether the 28-day, good-cause provision
in MCL 600.2912d(2) is available to extend the 91-day period in MCL 600.2912d(3).
2
We surmise that the Legislature may have concluded that a 91-day period following the filing of
a complaint would suffice to have the court address a failure to allow access to medical records,
the court order access, the defendant provide access, and then have the plaintiff procure an AOM.
In this case, plaintiff did file a motion to compel production, but it was not filed until two months
after the complaint was filed.
3
This Court addressed similar circumstances and reached the same conclusion as here in Raphael
v Bennett, unpublished per curiam opinion of the Court of Appeals, issued November 5, 2020
(Docket No. 349232), pp 4-5, in a case coming from the same trial court as our case. Our Supreme
Court recently denied leave in the case on April 27, 2021. Raphael v Bennett, 957 NW2d 799
(2021).
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malpractice action and the filing of her complaint did not toll the statute of limitations. See
Scarsella, 461 Mich at 553. Accordingly, summary disposition was appropriate under MCR
2.116(C)(7). And because the limitations period had expired, the trial court was required to dismiss
plaintiff’s complaint with prejudice. See Ligons v Crittenton Hosp, 490 Mich 61, 73; 803 NW2d
271 (2011). In sum, we affirm the orders granting summary disposition in favor of defendants
under MCR 2.116(C)(7) because plaintiff’s action was barred by the statute of limitations.
We affirm. Having fully prevailed on appeal, defendants may tax costs under MCR 7.219.
/s/ Mark T. Boonstra
/s/ Jane E. Markey
/s/ Deborah A. Servitto
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