# Kirkaldy v. Rim

> Michigan Supreme Court · July 11, 2007 · 478 Mich. 581

URL: https://www.frixlaw.com/law-library/cases/9503884

## Case

- **Full name:** Kirkaldy v. Rim
- **Court:** Michigan Supreme Court
- **Decided:** July 11, 2007
- **Citations:** 478 Mich. 581; 734 N.W.2d 201
- **Precedential status:** Published
- **Opinion:** Concurrence by Cavanagh
- **Judges:** Clifford W. Taylor
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9503884

## How later opinions describe it (automated extraction)

- holding that medical malpractice complaint filed with a defective affidavit of merit tolls the statute of limitations until the affidavit is successfully challenged in subsequent judicial proceedings
- holding that the filing of the complaint and affidavit of merit tolls the period of limitations, at least until the sufficiency of the affidavit is successfully challenged
- holding that a defective affidavit of merit tolls the limitations period until it is successfully challenged

## Opinion text

CAVANAGH, J.
(concurring). While I agree with the result reached by the majority, I disagree with the majority’s formulation of its rule. Specifically, I believe that Scarsella v Pollak, 461 Mich 547 ; 607 NW2d 711 (2000), was incorrectly decided, so I cannot agree with the majority’s statement, ante at 585, that under the statutes at issue, “the period of limitations is tolled when a complaint and affidavit of merit are filed and *587 served on the defendant.” Rather, I would hold that under the plain language of MCL 600.5856(a), the period of limitations is tolled when a complaint is filed, regardless of whether an affidavit of merit is filed with the complaint.
MCL 600.5856 states, in relevant part:
The statutes of limitations or repose are tolled in any of the following circumstances:
(a) At the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.
Clearly, the Legislature did not instruct that the period of limitations for a medical malpractice action would be tolled only when a complaint and an affidavit of merit are filed. In fact, as plaintiffs and their amici curiae point out, the Legislature considered and rejected a formulation of MCL 600.2912d that would have read, “If the complaint is not accompanied by the certificate required under this subsection, the complaint does not toll the statute of limitations as provided in § 5856(1) [sic].” See SB 270 as introduced on January 28,1993. Moreover, the Legislature amended MCL 600.5856 in the same public act used to enact the affidavit-of-merit requirement, 1993 PA 78 , so it could have easily adjusted the language of MCL 600.5856(a) had it so desired. It did neither. This Court is not free to add language to a statute or to interpret a statute on the basis of this Court’s own sense of how the statute should have been written. Because the language of MCL 600.5856(a) is quite plain, I would hold that a period of limitations is tolled when a complaint is filed. And under that rule, I would conclude that when plaintiffs filed their complaint in this matter, the period of limitations was tolled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9503884. Public record. Not legal advice.