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
How later courts described this case
- 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
- “I believe that Scarsella . . . was incorrectly decided . . . . 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.”
Written by the judges who cited it.
The opinion
*588 Kelly, J.
(concurring). In Scarsella v Pollak, 1 this Court held that filing a medical-malpractice complaint without an affidavit of merit “is ineffective, and does not work a tolling of the applicable period of limitation.” 2 I did not join the majority opinion. I dissented because I did not think that we should decide the issue without the benefit of full briefing and argument. 3 In this case, plaintiffs filed an affidavit of merit. Therefore, Scarsella is not controlling, and this case does not require us to determine whether Scarsella was correctly decided. Consequently, I join the result of the majority opinion.
But I write separately to note my concern that the issue in Scarsella has never received a full hearing from this Court. As Justice CAVANAGH points out in his concurrence, meritorious arguments exist indicating that the Court misread MCL 600.5856(a) seven years ago when it acted peremptorily in Scarsella. Whether the filing of a complaint without an affidavit of merit tolls the running of the statutory period of limitations should be again, and more thoroughly, considered by this Court.
461 Mich 547 ; 607 NW2d 711 (2000).
Id. at 553 , quoted ante at 584.
Scarsella, 461 Mich at 554 (opinion by Cavanagh and Kelly, JJ.).