The opinion
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
WILLIAM HILLEY, III, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 359223
Macomb Circuit Court
JOSEPH IHAB SALEH ALAMAT, D.D.S. and LC No. 2019-005128-NH
ALAMAT ORAL AND MAXILLOFACIAL
SURGERY, PLLC,
Defendants-Appellees.
Before: MURRAY, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Plaintiff appeals as of right an order striking his expert medical witness, granting summary
disposition in favor of defendants, and dismissing his medical malpractice case with prejudice for
filing an invalid affidavit of merit. We affirm.
I. FACTS AND PROCEDURAL BACKGROUND
This is a medical malpractice case. In March 2017, plaintiff went to defendants’ dentistry
practice and was advised by Dr. Joseph Ihab Saleh Alamat, D.D.S. that he needed three wisdom
teeth extracted. During the procedure, plaintiff’s inferior alveolar nerve (IAN) was allegedly
injured, causing numbness in his face. After the procedure, Dr. Alamat treated plaintiff for facial
numbness; however, plaintiff continued to suffer from facial numbness. In 2019, plaintiff brought
this lawsuit alleging that defendants breached the professional standard of care while treating
plaintiff, causing significant injury. With his complaint, plaintiff attached an affidavit of merit
(AOM) from an expert witness, Robert Staley, D.D.S., who attested that defendants breached the
standard of care. Defendants denied plaintiff’s allegations, asserting that plaintiff was reasonably
informed of the risks of the procedure, his injuries were not as significant as claimed, and he failed
to follow defendants’ instructions regarding the injury.
During discovery, the trial court allowed plaintiff to file an amended AOM for a new expert
witness after Dr. Staley was deemed unqualified under MCL 600.2169. In late September 2021,
plaintiff filed an AOM for Harold Richman, D.D.S., which attested that “[a]fter having reviewed
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records and Notice of Intent provided by Plaintiff’s attorney, I . . . submit the following opinions,”
including how the applicable standard of care was breached. About two weeks later, Dr. Richman
was deposed. When asked about the AOM, Dr. Richman stated that he did not, in fact, review any
materials before signing the AOM because “it was imperative to [plaintiff’s attorney],” from their
conversations, that the AOM be signed, notarized, and sent back. After signing the AOM, Dr.
Richman received plaintiff’s medical chart, Dr. Alamat’s depositions, and two articles on dental
elevators, which he reviewed at his leisure.
After the depositions, defendants moved to strike Dr. Richman as an expert witness,
arguing that plaintiff failed to comply with MCL 600.2912d(1), which states: “The affidavit of
merit shall certify that the health professional has reviewed the notice [i.e., notice of intent (NOI)]
and all medical records supplied to him or her by the plaintiff’s attorney concerning the allegations
contained in the notice . . . .” Here, Dr. Richman admitted in his deposition that plaintiff’s attorney
did not supply him with the NOI or plaintiff’s medical records before he signed the AOM, which
amounted to perjury. And plaintiff’s counsel was directly involved with having the AOM signed
and notarized despite Dr. Richman’s failure to review the NOI or medical records which
constituted an intentional fraud on the court. Defendants requested the trial court to strike Dr.
Richman as an expert and grant summary disposition in their favor.
Plaintiff responded to the motion, arguing that defendants failed to include any legal
authority in support of their “personal definition of the word ‘review’ in MCL 600.2912d.”
Plaintiff asserted that plaintiff’s counsel’s verbal communications over the telephone with Dr.
Richman about the NOI, AOM, and plaintiff’s medical records, followed by delivery of the
physical documents, was an efficient and common method of “review” under the statute. Plaintiff
argued that defendants could have asked Dr. Richman additional questions during his depositions
which would have revealed the detailed conversations between Dr. Richman and plaintiff’s
counsel about the NOI, AOM, and medical records. Therefore, plaintiff argued, defendants’
motion should be denied.
In reply, defendants argued that plaintiff’s counsel’s purported verbal communication with
Dr. Richman about the NOI and medical records before he signed the AOM did not constitute a
“review” under the statute. Defendants asserted that there was no caselaw distinguishing between
physically furnishing the documents for review to the expert witness as opposed to having a verbal
conversation about the documents because the statute is “absolutely clear.” Further, defendants
argued, it was not their place to thoroughly question Dr. Richman about conversations he may
have had with plaintiff’s counsel; rather, if plaintiff felt it was important to establish additional
testimony, plaintiff should have elicited that testimony. Therefore, defendants were entitled to
summary disposition in their favor and the dismissal of this action.
The trial court, without conducting oral argument, entered an opinion and order granting
the motion to strike Dr. Richman as an expert witness, granting summary disposition in favor of
defendants, and dismissing plaintiff’s case with prejudice. Because MCL 600.2912d(1) did not
define “reviewed” or “supplied,” the trial court consulted the common dictionary definitions and
concluded that plaintiff’s proposed interpretation was “not reasonable in light of the plain
language, context, and purpose of the statute.” The trial court held there was no reasonable dispute
that plaintiff failed to comply with MCL 600.2912d(1), stating:
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Plaintiff’s expert has admitted that his averment—that his opinion was based on a
review of the Plaintiff’s records and notice of intent provided by Plaintiff’s
counsel—was not true at the time Plaintiff’s counsel submitted the affidavit of
merit. This is precisely the type of conduct the Legislature intended to prohibit
when it enacted MCL 600.2912d. In sum, considering the admissions of Dr.
Richman and Plaintiff’s counsel in the light most favorable to them, there can be
no reasonable dispute that Plaintiff failed to comply with the statutory
requirements.
As a result, the trial court struck Dr. Richman’s AOM under MCR 2.115(B) and Dr. Richman was
stricken as an expert witness. Because the trial court determined that plaintiff was “unable to
create a genuine issue of material fact as to the standard of care and causation,” summary
disposition was granted in favor of defendants under MCR 2.116(C)(10). The trial court also
exercised its inherent power, as explained in Maldonado v Ford Motor Co, 476 Mich 372, 376;
719 NW2d 809 (2006), to “dismiss Plaintiff’s complaint with prejudice as a sanction for Dr.
Richman signing the affidavit under penalty of perjury knowing that he had not in fact reviewed
Plaintiff’s records or the notice of intent” because “[s]uch conduct constitutes the perpetration of
fraud on the Court.” The court also noted that it had authority under MCL 600.611 and MCR
2.504(B)(1) to impose a sanction that includes dismissal, which was appropriate in this case. This
appeal by plaintiff followed.
Plaintiff argues that the trial court abused its discretion by (1) striking Dr. Richman as an
expert because he signed the AOM after telephone discussions about the case with plaintiff’s
counsel which constituted a sufficient review under MCL 600.2912d(1), and (2) dismissing
plaintiff’s case with prejudice which was not proportionate and just. We disagree.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews de novo whether the trial court properly interpreted and applied the
relevant statutes, including the statutory requirements for AOMs. Jones v Botsford Continuing
Care Corp, 310 Mich App 192, 199; 871 NW2d 15 (2015). Our purpose in reviewing questions
of statutory construction is to discern and give effect to the Legislature’s intent. Echelon Homes,
LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005). Our analysis begins by
examining the plain language of the statute; if the language is unambiguous, no judicial
construction is required or permitted and the statute must be enforced as written. Id. (citation
omitted).
This Court also reviews de novo a trial court’s decision regarding a motion for summary
disposition under MCR 2.116(C)(10), which tests the factual sufficiency of a claim. Sheridan v
Forest Hills Pub Sch, 247 Mich App 611, 620; 637 NW2d 536 (2001). Summary disposition
should be granted when “there is no genuine issue regarding any material fact and the moving
party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183;
665 NW2d 468 (2003).
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In addition, “[t]rial courts possess the inherent authority to sanction litigants and their
counsel, including the right to dismiss an action. An exercise of the court’s ‘inherent power’ may
be disturbed only upon a finding that there has been a clear abuse of discretion.” Maldonado, 476
Mich at 388 (quotation marks and citations omitted). Likewise, a trial court’s decision to grant a
motion to strike an AOM is reviewed for an abuse of discretion. Kalaj v Khan, 295 Mich App
420, 425; 820 NW2d 223 (2012). “An abuse of discretion occurs when the trial court’s decision
is outside the range of reasonable and principled outcomes.” Id., citing Maldonado, 476 Mich at
388. Thus, when a trial court misapprehends the applicable law, an abuse of discretion occurs.
Kalaj, 295 Mich App at 425 (quotation marks and citations omitted).
B. AFFIDAVIT OF MERIT
Plaintiff first argues that the trial court erred in striking Dr. Richman as an expert witness
because he signed the AOM after telephone discussions about the case with plaintiff’s counsel
which constituted a sufficient review under MCL 600.2912d(1). We disagree.
“The plaintiff in a medical malpractice action bears the burden of proving: (1) the
applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate
causation between the alleged breach and the injury.” Cox ex rel Cox v Flint Bd of Hosp Managers,
467 Mich 1, 10; 651 NW2d 356 (2002). “Failure to establish any one of these four elements is
fatal to a plaintiff’s medical malpractice suit.” Estate of Horn by Stokes v Swofford, 334 Mich
App 281, 288; 964 NW2d 904 (2020). To initiate an action for medical malpractice, a plaintiff
must file a complaint and an affidavit of merit. Young v Sellers, 254 Mich App 447, 451; 657
NW2d 555 (2002). As stated in MCL 600.2912d(1):
The affidavit of merit shall certify that the health professional has reviewed
the notice and all medical records supplied to him or her by the plaintiff’s attorney
concerning the allegations contained in the notice and shall contain a statement of
each of the following:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard of practice or care
was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or
health facility in order to have complied with the applicable standard of practice or
care.
(d) The manner in which the breach of the standard of practice or care was the
proximate cause of the injury alleged in the notice.
The parties do not dispute that plaintiff’s counsel reasonably believed Dr. Richman
qualified as an expert, and it is not contested that the AOM meets the statutorily required elements
listed in MCL 600.2912d(1)(a) through (d). Rather, defendants contend, and the trial court
concluded, that the AOM violated the statutory requirements and was invalid because Dr. Richman
did not personally review the NOI and plaintiff’s medical records before signing the AOM. In
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other words, although Dr. Richman signed the AOM certifying that he had “reviewed the notice
and all medical records supplied to him,” he did not, in fact, review any documents—and they
were not even provided to him by plaintiff’s counsel—before he signed the AOM. Thus, Dr.
Richman’s AOM contained perjury and its submission by plaintiff’s counsel constituted a fraud
on the court.
Plaintiff contended in the trial court, as he does on appeal, that verbal communication
between plaintiff’s counsel and Dr. Richman about the NOI and plaintiff’s medical records before
Dr. Richman signed the AOM was sufficient “review” under MCL 600.2912d(1). The trial court
disagreed with plaintiff’s interpretation of the “review” and “supply” requirements, as do we. The
court must give effect to the plain, ordinary, or generally accepted meaning of the terms used in
statutes. See Bartalsky v Osborn, 337 Mich App 378, 383; 977 NW2d 574 (2021) (citation
omitted). A lay dictionary may be consulted, as the trial court noted, but it really is not necessary
here. To “review” documents that were “supplied” generally means, at the bare minimum, to look
over and thoughtfully consider documents that were provided. How can a health professional
provide a reliable opinion regarding the applicable standard of care, its breach, and proximate
cause in a medical malpractice case without looking at and reading the plaintiff’s medical records?
As this Court noted in Kalaj, 295 Mich App at 427, “It is sufficient, under the plain language of
[MCL 600.2912d(1)], for the expert to indicate that he or she has reviewed the records provided
by the plaintiff’s counsel and that in light of those records, the expert is willing and able to opine
with respect to the defendant’s negligence consistently with the elements set forth in the statute.”
This is not a case in which Dr. Richman claimed a visual impairment and so someone on
his staff read to him verbatim the documents that were supplied to him by plaintiff’s counsel; no
documents at all were provided to Dr. Richman before he signed the AOM. Dr. Richman testified
that he did not review any materials before signing the AOM because plaintiff’s counsel indicated
an urgent need to file the AOM with the trial court. And Dr. Richman did not recall ever seeing
or receiving the NOI. We agree with the trial court’s conclusion—Dr. Richman’s AOM was
invalid for failure to comply with the requirements of MCL 600.2912d(1). Having telephone
conversations with a plaintiff’s attorney about the contents of the NOI and the plaintiff’s medical
records is insufficient to meet the requirements of MCL 600.2912d(1).
As this Court explained in Kowalski v Fiutowski, 247 Mich App 156, 163-164; 635 NW2d
502 (2001), both the affidavit of merit and the affidavit of meritorious defense are considered part
of the pleadings and can be stricken under MCR 2.115(B).1 Accordingly, the trial court’s decision
to strike the AOM was not an abuse of discretion and defendants’ motion to strike Dr. Richman as
an expert witness was properly granted. Without Dr. Richman as an expert witness, plaintiff would
be unable to establish the applicable standard of care and to show that defendants breached that
standard; therefore, the trial court did not err in granting summary disposition in favor of
defendants. See Gonzalez v St John Hosp & Med Ctr, 275 Mich App 290, 294; 739 NW2d 392
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MCR 2.115(B) provides, in pertinent part, that a court “may strike from a pleading redundant,
immaterial, impertinent, scandalous, or indecedent matter, or may strike all or part of a pleading
not drawn in conformity with these rules.”
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(2007) (“Expert testimony is required to establish the applicable standard of care and to
demonstrate that the defendant breached that standard.”)
C. DISMISSAL WITH PREJUDICE
Plaintiff also argues that the trial court erred in dismissing his case with prejudice as a
sanction for filing an invalid affidavit of merit. We disagree.
In support of his argument, plaintiff refers us to cases involving dismissal as a discovery
sanction for filing late witness lists and for failing to provide discovery but those cases are
inapplicable—that is not what happened in this case. In this case, plaintiff’s proposed expert
executed an affidavit containing a false statement and plaintiff’s counsel not only encouraged that
false statement, but then filed that false affidavit with his complaint. In other words, Dr. Richman
made a false statement in the affidavit of merit, that affidavit was required by law under MCL
600.2912d(1) to initiate a medical malpractice action, and plaintiff’s counsel knew that the
affidavit contained a false statement but filed it anyway in support of his lawsuit.
As this Court noted in Wood v Bediako, 272 Mich App 558; 727 NW2d 654 (2006):
To constitute a valid affidavit, a document must be (1) a written or 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. at 562-563 (quotation marks and
citation omitted).]
The affidavit of merit at issue in this case—a sworn statement—contained a significant falsehood.
In fact, the falsehood pertained to the very purpose for which an affidavit of merit is required by
statute—to prevent the filing of frivolous medical malpractice lawsuits. See Dorris v Detroit
Osteopathic Hosp Corp, 460 Mich 26, 47; 594 NW2d 455 (1999). MCL 600.2912d(1) requires
that the health professional certify, in effect, that in his or her opinion—an opinion that is based
on a thoughtful and considered review of the NOI as well as the facts as actually set forth in the
plaintiff’s medical records and not merely the plaintiff’s attorney’s cherry-picked version of the
relevant facts—that the applicable standard of practice or care was not met in the circumstances
of that particular case and caused the plaintiff’s claimed injuries. In simple terms, it is a sworn
statement executed by a person who can be confidently relied upon and trusted to know that the
medical malpractice case has merit. In this case, the fact that Dr. Richman did not actually and
personally review any documentation before certifying that plaintiff’s medical malpractice case
was meritorious defeated the very purpose of MCL 600.2912d(1). And it was not merely an
inadvertent mistake—it was an intentional misrepresentation of fact.
While the appropriate sanction for filing a deficient affidavit of merit is generally dismissal
without prejudice, Kirkaldy v Rim, 478 Mich 581, 586; 734 NW2d 201 (2007), that sanction is not
necessarily required in every circumstance involving an invalid affidavit of merit. And it is not
necessarily required in a circumstance like this one where the affidavit is not merely deficient but
deceptive. “A fraud is perpetrated on the court when some material fact is concealed from the
court or some material misrepresentation is made to the court.” Matley v Matley, 242 Mich App
100, 101; 617 NW2d 718 (2000). We agree with the trial court that a fraud was perpetrated on the
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court under the circumstances of this case, i.e., a material misrepresentation was made to the court
by the filing of the particular affidavit of merit at issue. And plaintiff’s counsel was not only
complicit, but actually urged the misconduct by Dr. Richman—a medical and not a legal
professional. Even on appeal plaintiff’s counsel demonstrates a lack of understanding, arguing
that “[j]ustice seeks equity, fairness, due process, and trust in our legal system. So many technical
roadblocks stand in the way of justice.” What? Clearly, so-called “technical roadblocks” cannot
be overcome by claiming ignorance and perpetrating misconduct. The concept of an “affidavit”
is not a difficult one to grasp. In any case, plaintiff is correct that dismissal with prejudice is the
harshest sanction applied at law. We also acknowledge that such a sanction should be reserved
for suitably egregious circumstances. And under the circumstances of this case—which does not
involve a discovery violation—we conclude that the trial court did not abuse its discretion when it
exercised its inherent authority and dismissed plaintiff’s complaint with prejudice as a sanction for
the fraud that was perpetrated on the trial court. See Maldonado, 476 Mich at 388. The trial
court’s decision was not outside the range of reasonable and principled outcomes. See id.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
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