Medical malpractice; Failure to file an affidavit of merit (AOM) within the period set forth in MCL 600.2912d(1) & (2); MCL 600.5856(a); Scarsella v Pollak; The two-year statutory period of limitations for filing a medical malpractice action; MCL 600.5805(8); Preservation requirements for claims of error; Smith v Foerster-Bolser Constr, Inc; 91-day extension for filing of an AOM based on lack of access to medical records; MCL 600.2912d(3); MCL 600.2912b(5); Other exceptions; Bryant v Oakpointe Villa Nursing Ctr, Inc; VandenBerg v VandenBerg (VandenBerg I); The trial court’s discretion to amend a pleading; MCL 600.2301; Dismissal with prejudice; Ligons v Crittenton Hosp

The court held that the trial court should have dismissed plaintiffs’ (husband and wife) medical malpractice complaint with prejudice as to the wife’s first surgery, but dismissal with prejudice as to her second surgery would not be appropriate. They sued defendants-surgeon and medical facility for medical malpractice. Defendants moved for summary disposition based on plaintiffs’ failure to file the required AOM. The trial court denied their motion, finding that there was an inadvertent error in not attaching the AOM, that this case differed from Scarsella, and that plaintiffs could file their late AOM to save their claims. It reasoned that “the interest of justice should allow for the late filing of the [AOM] and that there was no undue delay, bad faith, or dilatory motive on the part of plaintiffs.” On appeal, defendants argued that it erred by distinguishing this case from Scarsella, that summary disposition in their favor was appropriate, and that plaintiffs’ claims should be dismissed with prejudice. The court agreed in part and disagreed in part. “The Scarsella Court’s mandate is clear: when a complaint is filed without an [AOM], the lawsuit is not commenced and the statute of limitations is not tolled. We do not find that an exception to this mandate exists, such as a plaintiff being in possession of an [AOM] but erroneously does not file the [AOM] with the original complaint.” In addition, plaintiffs could not rely on their emergency motion as their “attempt to cure the procedural defect of not filing the” AOM with the complaint “was untimely, and, therefore, improper.” And their additional challenges failed. As such, “dismissal with prejudice with regard to the” first surgery was appropriate. But as to the second surgery, the court found “the statutory period of limitations was tolled by the filing of the amended complaint with the accompanying” AOM. It concluded that the “amended complaint standing alone met the requirements of MCL 600.2912d(1). This allows plaintiffs’ claims concerning the [second] surgery to move forward because the amended complaint and [AOM] were filed before expiration of the two-year period of limitations . . . .” The purpose of MCL 600.2912d “is ‘to deter frivolous medical malpractice claims.’ Such purpose is served by concluding that defendants received a timely complaint and” AOM as to the second surgery. As related to that surgery, “the amended complaint was timely filed” with the required AOM. Affirmed in part and reversed in part.