# 20241230_C367213_51_367213.Opn.Pdf

> Michigan Court of Appeals · December 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10772294

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** December 30, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

DIANA CHRISTIAN, Personal Representative of the UNPUBLISHED
ESTATE OF PAUL D. CHRISTIAN, December 30, 2024
1:21 PM
Plaintiff-Appellant,

v No. 367213
Wayne Circuit Court
ASCENSION ST. JOHN HOSPITAL, AMRITA LC No. 23-001561-NH
MANASA VEMPATI, M.D., ELIZABETH
PEACOCK, M.D., ELI ZACHARY SCHNED,
M.D., ABIGAIL MARIE IGNAGNI, PA, TERESA
MARIA OXHOLM, and HOSPITAL MEDICINE
ASSOCIATES, LLC, doing business as
TEAMHEALTH HOSPITAL MEDICINE EAST
STAFFING, LLC, also known as TEAMHEALTH,

Defendants-Appellees.

Before: BORRELLO, P.J., and N. P. HOOD and YOUNG, JJ.

PER CURIAM.

In this wrongful-death medical-malpractice action, plaintiff, Diana Christian, as Personal
Representative of the Estate of Paul Christian, appeals as of right the final order granting summary
disposition under MCR 2.116(C)(7) (claim barred by statute of limitations) to defendants
Ascension St. John Hospital, Eli Schned, M.D., and Elizabeth Peacock, M.D. Plaintiff also
challenges the trial court’s earlier orders granting summary disposition under MCR 2.116(C)(5)
(plaintiff lacked legal capacity to sue) and MCR 2.116(C)(7) to codefendants Teresa Oxholm,
M.D., Amrita Vempati, M.D., and Abigail Ignagni, PA, and to codefendant Hospital Medicine
Associates, LLC (doing business as “Teamhealth”) on those same grounds, and under
MCL 600.2912c. Plaintiff’s claims were dismissed on the basis that her appointment as personal
representative did not relate back to the time she filed the complaint on behalf of the estate.

On appeal, plaintiff contends this Court’s recent opinion in Eversole v Nash, ___ Mich App
___; ___ NW3d ___ (2024) (Docket No. 366556) is controlling, and the trial court’s orders
summarily dismissing her case against all defendants should be reversed. Because the

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interpretation of MCL 700.3701 in Eversole is retroactive to plaintiff’s case, we reverse the trial
court’s orders as to codefendants Ascension St. John Hospital, Dr. Schned, Dr. Peacock, Dr.
Oxholm, Dr. Vempati, and Ms. Ignagni, and remand this case for further proceedings. We
otherwise affirm the order granting summary disposition to Teamhealth under MCL 600.2912c.

I. FACTUAL BACKGROUND

This appeal arises from Paul Christian’s1 treatment at Ascension St. John Hospital.
Defendants’ alleged failure to monitor and address Paul’s severe hypertension led to his death on
February 6, 2018. On January 27, 2023, plaintiff filed a petition in the Wayne County Probate
Court for appointment as personal representative of Paul’s estate. The probate court set a hearing
date for June 7, 2023, wherein plaintiff’s appointment as personal representative was granted.2

On February 2, 2023, before the probate court granted plaintiff’s appointment, plaintiff
commenced this action against all defendants, bringing the complaint in the name of “Diana
Christian as Personal Representative of the Estate of Paul D. Christian, deceased.” The complaint
alleged medical negligence against all defendant doctors and Ms. Ignagni (Counts I-IV), and
vicarious liability of codefendants Ascension St. John Hospital (Count V) and Teamhealth (Count
VI). On March 14, 2023, Teamhealth responded by filing an affidavit of noninvolvement under
MCL 600.2912c, arguing there was no evidence that Paul was provided any services by
Teamhealth or any of its staff during his stay at Ascension St. John Hospital.

On May 4, 2023, Defendants Dr. Vempati, Dr. Oxholm, and Ms. Ignagni, filed a motion
for summary disposition under MCR 2.116(C)(7) in lieu of an answer. Defendants argued the
statute of limitations on plaintiff’s claim had expired on February 6, 2023, and because plaintiff
had no authority to file the claim under MCL 600.2922,3 as she was not yet officially appointed
personal representative of Paul’s estate, her claim should be dismissed. Finally, defendants argued
that under the analytical framework set forth in Castle v Lockwood-MacDonald Hosp, 40 Mich
App 597, 604; 199 NW2d 252 (1972), plaintiff could not have a “reasonable grounds for believing”
that she was granted status as personal representative at the time of filing the instant law suit
because she had not yet appeared before the probate court and received the letters of authority,

1
Because Paul Christian and Diana Christian share the same surname, Paul is referred to by his
first name throughout this opinion.
2
The lower court record does not reflect when, if at all, letters of authority were issued to plaintiff
before her claims against defendants were dismissed by the trial court. Because the letters of
authority were not before the trial court at the time the motion for summary disposition was
decided, we decline to consider the letters of authority on appeal. See Innovative Adult Foster
Care Inc v Ragin, 285 Mich App 466, 476; 776 NW2d 398 (2009) (“[R]eview is limited to the
evidence that had been presented to the circuit court at the time the motion was decided.”); and
People v Morrison, 328 Mich App 647, 655; 939 NW2d 728 (2019), citing MCR 7.210(A) (“[T]o
consider evidence presented on appeal that the parties failed to present to the trial court would be
an impermissible expansion of the lower-court record.”).
3
MCL 600.2922(2) states in relevant part that every wrongful death action “shall be brought by,
and in the name of, the personal representative of the estate of the deceased.”

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even though she had already filed her petition with the probate court before filing the complaint.
Thus, according to defendants, the relation-back doctrine could not apply.

On May 26, 2023, Defendants Ascension St. John Hospital, Dr. Schned, and Dr. Peacock
filed a concurrence in codefendants’ Dr. Vempati, Dr. Oxholm, and Ms. Ignagni’s motion for
summary disposition, adding that the trial court should grant relief to all defendants under
MCR 2.116(C)(5) (plaintiff lacked legal capacity) as well as under MCR 2.116(C)(7).

On June 12, 2023, plaintiff responded to defendants Ascension St. John Hospital,
Dr. Schned, and Dr. Peacock’s concurrence in the motion for summary disposition, highlighting
that the concurrence cited additional caselaw not contained in the motion for summary disposition,
and did not contain numbered paragraphs for plaintiff to admit or deny; however, the response still
distinguished the caselaw cited by the concurrence. On June 22, 2023, defendant Teamhealth also
filed a joinder and concurrence in the motion for summary disposition, including a request for
dismissal under MCL 600.2912c. Teamhealth argued that because it previously filed an affidavit
of noninvolvement and plaintiff had not challenged the affidavit or sought discovery with respect
to Teamhealth’s noninvolvement, Teamhealth was entitled to dismissal.

At the hearing on defendants’ motion for summary disposition, plaintiff argued, regarding
Teamhealth’s concurrence, that any motion to dismiss under MCL 600.2912c should be filed
separately, not as part of a concurrence which plaintiff did not have an adequate opportunity to
respond to. The trial court concluded, under MCR 2.116(C)(7), “and possibly (C)(5) as well,” that
plaintiff lacked standing to sue all defendants because the statute of limitations expired on
February 8, 2023 and plaintiff sought appointment as personal representative only 10 days prior.
The court also ruled plaintiff had not presented admissible evidence that she had a good faith,
reasonable belief she had been appointed personal representative. The court relied on Warren v
Howlett, 148 Mich App 417; 383 NW2d 636 (1986) for the proposition that “Michigan [caselaw]
is clear that if a complaint by a personal representative is filed before the probate court has entered
an order appointing a personal representative the complaint will not toll the statute of
limitations . . . .” The trial court noted the fact that there was a later hearing on whether to appoint
plaintiff as personal representative should have indicated to her that she was not yet personal
representative and did not have authority to act. The court also granted Teamhealth’s request for
dismissal contained in its concurrence under MCL 600.2912(c) because Teamhealth filed an
affidavit of noninvolvement and plaintiff had not challenged it.

On July 14, 2023, the trial court entered an order granting defendants Dr. Vempati, Dr.
Oxholm and Ms. Ignagni’s motion for summary disposition, and dismissed plaintiff’s claims
against those parties with prejudice. The court also entered an order granting Teamhealth’s
concurrence under MCR 2.116(C)(5), (C)(7), and MCL 600.2912(c). The order acknowledged
plaintiff responded to Teamhealth’s joinder and concurrence. Finally, the trial court entered an
order granting defendants Dr. Schned, Dr. Peacock, and Ascension St. John Hospital’s concurrence
in the motion for summary disposition. This final order dismissed the entire case. Plaintiff now
appeals.

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II. ANALYSIS

Plaintiff argues that this Court’s recent published decision in Eversole, ___ Mich App at
___; slip op at 11, affirms the statutory relation-back doctrine applies where a personal
representative is appointed after the complaint is filed “so long as . . . the timely filing of the
complaint, benefitted the estate.” MCL 700.3701. According to plaintiff, Eversole is controlling
here and the trial court’s order granting summary disposition should be vacated.4 We agree.

A. PLAINTIFF’S CLAIMS WERE IMPROPERLY DISMISSED BECAUSE MCL 700.3701
PROVIDES PLAINTIFF RELIEF

1. STANDARDS OF REVIEW

This Court reviews de novo a trial court’s decision to grant or deny summary disposition.
Meemic Ins Co v Fortson, 506 Mich 287, 296; 954 NW2d 115 (2020). Although defendants cite
both MCR 2.116(C)(7) and (C)(5) as grounds to grant summary disposition, “a motion for
summary disposition asserting the real-party-in-interest defense more properly fits within
MCR 2.116(C)(8) or MCR 2.116(C)(10), depending on the pleadings or other circumstances of
the particular case.” Cannon Twp v Rockford Pub Sch, 311 Mich App 403, 411; 875 NW2d 242
(2015) (quotation marks and citation omitted). In considering defendants’ arguments for summary
disposition on this ground, the trial court examined nonrecord evidence, including the probate
court order approving plaintiff’s appointment as personal representative. Because of this, we will
“treat the trial court’s decision as having been made under MCR 2.116(C)(10).” Cannon Twp, 311
Mich App at 411, citing Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999).

A motion for summary disposition under MCR 2.116(C)(10), which tests the factual
sufficiency of the plaintiff’s claim, is properly granted when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. El-Khalil v Oakwood
Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). “A genuine issue of material fact
exists when the record leaves open an issue upon which reasonable minds might disagree.”
Johnson v Vanderkooi, 502 Mich 751, 761; 918 NW2d 785 (2018) (quotation marks and citation
omitted). When reviewing the trial court’s decision to grant or deny summary disposition under
MCR 2.116(C)(10), this Court considers the parties’ documentary evidence in the light most
favorable to the party opposing the motion. Johnson, 502 Mich at 761. “[R]eview is limited to

4
Most of the parties’ briefs on appeal were filed before the Eversole opinion was published. The
parties mostly rely on common-law relation-back decisions which “generally hold that the
appointment of a personal representative of an estate occurring after the statute of limitations for
a claim has expired relates back to the timely filing of a complaint on the estate’s behalf as long
as the personal representative had a good faith belief that they had the authority to act, when in
fact they did not.” Eversole, ___ Mich App at ___; slip op at 7. See Osner v Boughner, 152 Mich
App 744, 747; 394 NW2d 411 (1986); Saltmarsh v Burnard, 151 Mich App 476, 491; 391 NW2d
382 (1986); Warren, 148 Mich App at 422-423; Fisher v Volkswagenwerk Aktiengesellschaft, 115
Mich App 781, 786; 321 NW2d 814 (1982); Castle, 40 Mich App at 605-606.

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the evidence that had been presented to the circuit court at the time the motion was decided.”
Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 476; 776 NW2d 398 (2009).

“Whether a plaintiff is the real party in interest is a question of law subject to review de
novo . . . .” Eversole, ___ Mich App at ___; slip op at 4. Whether a “personal representative’s
subsequent appointment as personal representative relates back in time to validate an earlier-filed
complaint” is also a question of law reviewed de novo. Id.

2. RETROACTIVITY OF EVERSOLE V NASH TO THE TRIAL COURT’S DECISION

Defendants Dr. Schned, Dr. Peacock, and Ascension St. John Hospital argue this Court
should not apply Eversole, ___ Mich App at ___; slip op at 1, to resolve this issue on appeal
because Eversole was decided in June 2024, long after the trial court summarily dismissed
plaintiff’s claims. Defendants cite Pohutski v City of Allen Park, 465 Mich 675, 696; 641 NW2d
219 (2002), which states a judicial decision overturning established precedent may be given
limited retroactive effect if injustice would result.

In determining retroactivity, courts must first address the “[t]hreshold question” of
“whether a decision amounts to a new rule of law.” League of Women Voters of Mich v Secretary
of State, 508 Mich 561, 566; 975 NW2d 840 (2022). “A judicial decision’s rule is considered to
be new if it breaks new ground or imposes a new obligation on the States or the Federal
Government.” People v Walker, 328 Mich App 429, 438; 938 NW2d 31 (2019) (quotation marks
and citation omitted). A judicial decision does not establish any new rule where the decision is
based on the proper interpretation of longstanding statutory authority in existence at the time the
trial court’s decision was made. See People v Robinson, ___ Mich App ___, ___; ___ NW3d ___
(2024) (Docket No. 365226); slip op at 5-6 (holding the decision in People v Peeler, 509 Mich
381; 984 NW2d 80 (2022)) was retroactive to the defendant’s case because “Peeler’s holdings did
not establish any new rule because the Court did not announce a new rule that was not dictated by
precedent. Instead, Peeler’s decision was based on the proper interpretation of longstanding
statutory authority in existence since well before [the defendant’s] indictment and conviction in
this case.”). Here, Eversole is retroactive to the trial court’s decision because Eversole merely
interprets statutes in existence at the time the complaint was filed, and Eversole does not create
new law.5 Id.

5
“MCL 700.3701 became effective April 1, 2000, 1998 PA 386, and was not in place when most
of the common-law relation-back decisions were decided. MCL 700.3701 was previously codified
at MCL 700.332, 1978 PA 642, effective July 1, 1979, and provided, in relevant part, as follows:
The duties and powers of an independent personal representative commence upon
appointment. The powers of an independent personal representative relate back in
time to give acts by the person appointed which are beneficial to the estate
occurring before the appointment the same effect as those occurring thereafter.

The common law cases did not consider the effect of MCL 700.332.” Eversole, ___ Mich App at
___ n 10; slip op at 8 n 10. The seminal case creating a “good faith reasonable belief” standard in

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3. APPLYING EVERSOLE V NASH

In Eversole, ___ Mich App at ___; slip op at 6, the plaintiff brought a medical-malpractice
wrongful-death action on January 4, 2023, even though she was not the personal representative of
the decedent’s estate and the applicable medical-malpractice limitations period under
MCL 600.5805(6) expired on January 18, 2020, two years after the claim accrued on January 18,
2018. The plaintiff relied on MCL 600.5852’s saving provision, which states “a personal
representative may file a medical malpractice suit on behalf of a deceased person two years after
the letters of authority are issued, as long as the suit is commenced within three years after the
two-year malpractice limitations period expired.” Eversole, ___ Mich App at ___; slip op at 6-7
(citation omitted).

But because the probate court in Eversole did not issue the plaintiff’s letters of authority
until January 30, 2023, 26 days after she filed the wrongful-death action, the plaintiff lacked
authority under MCL 600.2922(2) to bring the action at the time she filed it and thus, the action
was not properly commenced by a personal representative within two years after issuance of the
letters of authority, MCL 600.5852(1). Eversole, ___ Mich App at ___; slip op at 7, citing
McMiddleton v Bolling, 267 Mich App 667, 673; 705 NW2d 720 (2005) (MCL 600.5852 “ ‘clearly
allows an action to be brought within two years after letters of authority are issued to the personal
representative’ . . . not before her appointment.” (citation omitted), and Jesse Estate v Lakeland
Specialty Hosp at Berrien Ctr, 328 Mich App 142, 147-148; 936 NW2d 705 (2019) (concluding that
“a personal representative may not commence an action until he has authority to do so and he receives
this authority on the date the probate judge signs letters of authority,” and the saving provision
“begin[s] to run from the date the personal representative has authority to commence an action”).

Resolution of the plaintiff’s appeal in Eversole, ___ Mich App at ___; slip op at 4, required
the interpretation of three statutes: MCL 600.2922(2), MCL 600.5852, and MCL 700.3701.
MCL 600.2922(2) states that a wrongful-death action “shall be brought by, and in the name of, the
personal representative of the estate of the deceased. . . . Therefore, only a personal representative
may commence a wrongful death action.” Eversole, ___ Mich App at ___; slip op at 4. The time
for a personal representative to bring a wrongful-death action is also limited. “A plaintiff in a
medical-malpractice action has two years from the date the cause of action accrued in which to file
suit, MCL 600.5805(6),[6] and a medical-malpractice claim generally ‘accrues at the time of the
act or omission that is the basis for the claim of medical malpractice . . . ,’ MCL 600.5838a(1).”
Dale Estate v Robinson, 279 Mich App 676, 683; 760 NW2d 557 (2008).

determining whether relation-back doctrine applied, Castle v Lockwood, 40 Mich App 597, was
decided in 1972, five years before MCL 700.332 became effective. Later common-law decisions
applying Castle overlooked the effect of MCL 700.332 on the relation-back analysis.
6
On February 6, 2018, when this action accrued, MCL 600.5805(6) provided the malpractice
limitations period. MCL 600.5805 was amended by 2018 PA 183, effective June 12, 2018, and the
malpractice limitations period was renumbered as Subsection (8). We refer to Subsection (6) in this
opinion.

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However, the wrongful-death savings provision, MCL 600.5852, affords a personal
representative additional time to pursue legal action on behalf of the estate. MCL 600.5852 “is a
saving provision designed to preserve actions that survive death in order that the representative of
the estate may have a reasonable time to pursue such actions.” Eversole, ___ Mich App at ___;
slip op at 5 (quotations marks and citations omitted). Under MCL 600.5852, a personal
representative may file a medical malpractice suit on behalf of a deceased person for two years
after letters of authority are issued, as long as that suit is commenced within three years after the
two-year malpractice limitations period expired.” Eversole, ___ Mich App at ___; slip op at 5-6
(quotation marks and citation omitted). “MCL 600.5852 thus provides a maximum of five years
from the date the deceased’s medical-malpractice claim accrues in which a personal representative
may bring a wrongful-death action.” Id. at ___; slip op at 6. A wrongful-death action is properly
brought under MCL 600.5852’s saving period if “the complaint was filed within two years of the
issuance of the . . . personal representative’s letters of authority and within three years after the
period of limitations had expired.” Dale Estate, 279 Mich App at 688-689. The two-year saving
period “is measured from the date the letters of authority are issued.” Id. at 686 (quotation marks
and citation omitted).

As with the plaintiff in Eversole, here, plaintiff’s complaint does not conform to
MCL 600.2922(2) and MCL 600.5852. In this case, the applicable medical-malpractice
limitations period under MCL 600.5805(6) expired on February 6, 2020. Plaintiff filed her
complaint on February 2, 2023, even though she was not yet personal representative of Paul’s
estate. Plaintiff’s appointment as personal representative of Paul’s estate had not been granted by
the probate court until June 7, 2023, four months after she filed this wrongful-death action. Under
MCL 700.3103 (emphasis added), “to acquire the powers and undertake the duties and liabilities
of a decedent’s personal representative, a person must be appointed by the register or by court
order, must qualify, and must be issued letters. The issuance of letters commences an estate’s
administration.” Plaintiff therefore lacked the authority under MCL 600.2922(2) to bring this
action when she filed it.

4. MCL 700.3701

As with the plaintiff in Eversole, MCL 700.3701, a relation-back provision included in the
Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., provides plaintiff relief
here. MCL 700.3101 (emphasis added) states:

A personal representative’s duties and powers commence on appointment.
A personal representative’s powers relate back in time to give acts by the person
appointed that are beneficial to the estate occurring before appointment the same
effect as those occurring after appointment. Subject to sections 3206 to 3207,
before or after appointment, a person named as a personal representative in a will
may carry out the decedent’s written instructions relating to the decedent’s body,
funeral, and burial arrangements. A personal representative may ratify and accept
an act on behalf of the estate done by another if the act would have been proper for
a personal representative.

In Eversole, this Court held that under MCL 700.3701, “the powers granted by the letters of
authority relate[] back to the date [the] plaintiff filed the complaint on behalf of the estate . . . as

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filing that timely action was beneficial to the estate.” Eversole, ___ Mich App at ___; slip op at 8.
This does away with the good-faith reasonable-belief requirement in Michigan’s common-law
cases. Id.

But because the record does not reflect when, or if, plaintiff’s appointment as personal
representative of Paul’s estate was accepted and the letters of authority were issued, there remains
a genuine issue of fact regarding whether plaintiff is the real party in interest with standing to bring
this wrongful-death medical-malpractice action. Dale Estate, 279 Mich App at 686.
MCL 700.3103. The trial court knew as much when it stated on the record that “[n]obody attached
the [l]etters of [a]uthority, I don’t even know if she ever filed an acceptance,” but nevertheless,
erred in granting summary disposition as to all defendants. We reverse the trial court’s order
granting summary disposition to defendants Dr. Vempati, Dr. Oxholm, and Ms. Ignagni, as well
as to codefendants Dr. Schned, Dr. Peacock, and Ascension St. John Hospital under
MCR 2.116(C)(5) and MCR 2.116(C)(7). We remand this case to the trial court for the parties to
establish if the letters of authority appointing plaintiff as personal representative were issued, and
if they were, to apply MCL 700.3701 to relate plaintiff’s appointment back to the date the
complaint was filed.

B. PLAINTIFF’S CLAIM AGAINST TEAMHEALTH WAS PROPERLY DISMISSED

On appeal, plaintiff also contends that because Teamhealth did not brief its alternate
grounds for dismissal under MCL 600.2912c, but rather referenced it only in a concurrence to
defendants’ Dr. Vempati, Dr. Oxholm, and Ms. Ignagni’s motion for summary disposition, the
trial court erred in granting summary disposition on the basis of MCL 600.2912c. We disagree
and affirm the dismissal of claims against Teamhealth.

1. STANDARD OF REVIEW

Although the order dismissing plaintiff’s claim against Teamhealth states their concurrence
in the motion for summary disposition is granted under MCR 2.116(C)(5), (C)(7), and
MCL 600.2912c “and as more fully stated on the record. . . .” the trial court, on the record, only
discussed Teamhealth’s dismissal under MCL 600.2912c. Thus, review of the order dismissing
Teamhealth is limited to MCL 600.2912c and other applicable court rules. “This Court reviews
de novo questions about the correct interpretation and application of statutes and court rules.”
Home-Owners Ins Co v Andriacchi, 320 Mich App 52, 71; 903 NW2d 197 (2017). Issues
involving statutory construction are questions of law reviewed de novo. Yaldo v North Pointe Ins
Co, 457 Mich 341, 344; 578 NW2d 274 (1998). Our Supreme Court summarized in Yaldo:

The primary goal of judicial interpretation of statutes is to give effect to the intent
of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501
NW2d 76 (1993). In determining legislative intent, we look first at the words of
the statute. If the language is clear and unambiguous, judicial construction is not
normally permitted. If reasonable minds can differ regarding its meaning, then
judicial construction is appropriate. Indenbaum v Michigan Bd of Med (After
Remand), 213 Mich App 263[, 271]; 539 NW2d 574 (1995). The Legislature is
presumed to have intended the meaning it plainly expressed. Id. [Yaldo, 457 Mich
at 346.]

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Where two statutes apply, the more specific one controls. Slater v Ann Arbor Pub Sch Bd of Ed,
250 Mich App 419, 434–435; 648 NW2d 205 (2002); see also Decker v Trux R US, Inc, 307 Mich
App 472, 480-481; 861 NW2d 59 (2014) (where there is a conflict between a general provision in
a statute and a specific provision in a court rule, the specific provision controls).

2. MCL 600.2912c

Resolution of this issue requires analysis of MCL 600.2912c, which states (emphasis
added):

(1) In an action alleging medical malpractice, a party named as a defendant in the
action may, instead of answering or otherwise pleading, file with the court an
affidavit certifying that he or she was not involved, either directly or indirectly, in
the occurrence alleged in the action. Unless the affidavit is opposed pursuant to
subsection (2), the court shall order the dismissal of the claim, without prejudice,
against the affiant.

(2) Any party to the action may oppose the dismissal or move to vacate an order of
dismissal and reinstate the party who filed the affidavit if it can be shown that the
party filing the affidavit was involved in the occurrence alleged in the action.
Reinstatement of a party to the action under this subdivision shall not be barred by
any statute of limitations defense that was not valid at the time the action was
originally commenced against the affiant. The opposing party may obtain
discovery regarding the involvement or noninvolvement of the party filing the
affidavit. The discovery shall be completed within 90 days after the date the
affidavit is filed.

MCL 600.2192c(1) does not lay out a specific procedure for a defendant who has filed an affidavit
of noninvolvement to seek dismissal, and the statute states dismissal is mandatory.7 However,
MCR 2.116(B)(1) states “[a] request for dismissal without prejudice under MCL 600.2912c must
be made by motion under MCR 2.116 and MCR 2.119.” Because MCR 2.116(B)(1) lays out a
more specific directive for how dismissal under MCL 600.2912c is to be sought, the court rule
controls. Slater, 250 Mich App at 434-435; Decker, 307 Mich App at 480-481.

3. APPLICATION

In lieu of a response to plaintiff’s complaint, Teamhealth filed an affidavit of
noninvolvement on March 14, 2023. In order to negate Teamhealth’s assertions in its affidavit,
under MCL 600.2912c(2), plaintiff would have needed to complete discovery within 90 days of
the filing of the affidavit, which would have been a deadline of June 12, 2023. The record reflects
plaintiff did no such thing. However, instead of filing an independent motion for summary
disposition under MCR 2.116 and MCR 2.119, Teamhealth filed a concurrence in pursuit of

7
The term “shall” in a statute is generally interpreted as mandatory, equating to the word “must.”
Old Kent Bank v Kal Kustom, Inc, 255 Mich App 524, 532; 660 NW2d 384 (2003).

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dismissal under MCL 600.2912c. This was improper and violated the more specific directive in
the court rules.

Nevertheless, this Court is “not bound by a party’s choice of labels because this would
effectively elevate form over substance.” Adams v Adams (On Reconsideration), 276 Mich App
704, 715; 742 NW2d 399 (2007). Teamhealth cites to MCR 2.116(I)(1)8 for the proposition that
the trial court has the inherent authority to consider motions that do not necessarily meet proper
form. Because Teamhealth would have otherwise been entitled to dismissal without prejudice
under MCL 600.2912c on substantive grounds that plaintiff did nothing to challenge its affidavit,
in the interest of judicial economy and efficiency, we affirm the trial court’s order dismissing
Teamhealth without prejudice.

III. CONCLUSION

Affirmed in part, reversed in part, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.

/s/ Stephen L. Borrello
/s/ Noah P. Hood
/s/ Adrienne N. Young

8
MCR 2.116(I)(1) states: “If the pleadings show that a party is entitled to judgment as a matter of
law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the
court shall render judgment without delay.” Such is the case here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10772294. Public record. Not legal advice.