The Ol’ Expert Switcheroo: COA Holds AOM Signed by New Expert “Amendment” and Relates Back
If a plaintiff replaces an affidavit of merit (AOM) signed by an unqualified expert with one signed by a qualified expert, does the subsequent AOM constitute an “amendment” to the original AOM, such that it relates back for statute of limitations purposes? Surprisingly, yes—at least according to the Court of Appeal’s recent opinion in Legion-London v. Surgical Inst. of Mich Ambulatory Surgery Ctr., 2020 Mich App Lexis 939 (2020).
In Legion-London, the trial court granted summary disposition to Dr. Kevin Crawford because the author of the AOM was an expert in neurosurgery rather than Dr. Crawford’s medical specialty of orthopedic surgery. Plaintiff then moved to file an “amended” AOM signed by an orthopedic surgeon. The trial court denied the motion to amend, concluding that the new AOM wasn’t an amendment because the affiant wasn’t the same doctor who signed the original AOM.
The Court of Appeals, however, reversed and held that the new AOM constituted an “amendment” and related back for statute of limitations purposes pursuant to MCR 2.112(L)(2)(b) (providing that an AOM may be “amended”) and MCR 2.118(D) (providing that that an “amendment” of an AOM “relates back to the date of the original filing of the affidavit”).
The majority reasoned that amendment “requiring a change in expert affiant is clearly contemplated by the text of MCR 2.112(L)(2)(b)”—which requires defendants to challenge the AOM and the “qualifications of the signer” within 63 days of service—because “requiring a defendant to promptly notify a plaintiff that the affiant is not properly qualified would serve no purpose if plaintiff was not also permitted to amend the affidavit so as to have a properly qualified expert.” Additionally, the majority noted that leave to amend shall be freely given under the court rules, and that MCR 2.112(D) doesn’t place limits on the nature of the amendment, so long as the amendment “springs from the same transactional setting” as that originally pleaded.
In his dissent, Justice Cameron concluded that a replacement AOM signed by a new expert isn’t an “amendment” within the plain meaning of the term:
Plaintiff’s second AOM was not an amendment under any commonly understood sense of the word. Plaintiff did not seek to make an addition, deletion, or correction to the AOM that was filed with the complaint. Rather, plaintiff sought to replace the original AOM with a different AOM signed by Dr. John Joseph Regan, an orthopedic surgeon whose medical specialty matched that of defendant Crawford. The wholesale substitution of affiants in different medical specialties cannot be considered a ‘minor revision or addition’ of wording within the original AOM.[1]
Furthermore, Justice Cameron observed that the majority’s expansive reading of MCR 2.112(L)(2)(b) subverts MCL 600.2912d(1), which requires a plaintiff’s attorney to file an AOM signed by a health professional whom the attorney “reasonably believes meets the requirements for an expert witness” under MCL 600.2169. Under the majority’s interpretation, this requirement is rendered nugatory because amendment would be permitted regardless of whether plaintiff’s attorney “reasonably believed” that the expert was qualified.
Finally, Justice Cameron disagreed that a more restrictive reading of MCR 2.112(L)(2)(b) would render the phrase “qualifications of the signer” meaningless—noting that, in some cases, an expert’s qualifications can be corrected or supplemented within the original affidavit of merit, such that a new affidavit from a new affiant wouldn’t be required (e.g., correcting an insufficient or inaccurate description of the expert’s qualifications).[2]
This decision is an unfavorable development for healthcare professionals because it significantly weakens the AOM requirements, which are designed to deter frivolous malpractice claims by ensuring cases are supported by qualified experts. According to this ruling, plaintiffs no longer need even a reasonable belief that the expert is qualified because, if challenged, they are permitted to replace the expert with an entirely different expert. Accordingly, if this ruling stands, defendants will have little incentive to challenge AOMs and uphold the statutory vetting mechanism.
We believe that this decision is inconsistent with the letter and spirit of the law and anticipate that it will be appealed.
For additional information on this topic contact FBMJ attorney, Mitchell Jackson at mjackson@fbmjlaw.com or 734-742-1800.
[1] As noted in the dissent, Black’s Law Dictionary defines “amendment” as “a formal and usually minor revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument; specifically, a change made by addition, deletion, or correction, especially an alteration in wording,” and Merriam-Webster’s defines “amend” to mean “to alter formally by modification, deletion, or addition.”
[2] Even without relation back of a replacement affidavit, this provision also affords plaintiffs the opportunity to correct issues with the affiant’s qualifications where the statute of limitations has not yet expired. For instance, let’s say a plaintiff files suit 90 days before the statute of limitations expires and submits an AOM from an unqualified expert. Defendant must challenge the affiant’s qualifications within 63 days, such that plaintiff would have 27 days to re-file the complaint with an AOM signed by a qualified expert. Thus, the requirement that defendants challenge the “qualifications of the signer [of an AOM]” within 63 days serves a purpose without adopting the majority’s expansive interpretation of the statute.