Why more frivolous medical liability lawsuits are possible in Michigan

Tanya Albert Henry , Contributing News Writer

If a plaintiff in Michigan files a medical liability lawsuit, they must, with few exceptions, file the affidavit of merit within the statute of limitations or have the lawsuit dismissed with prejudice, physicians tell the Michigan Supreme Court.

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Plaintiffs who obtained an affidavit of merit but didn’t file it with their complaint alleging that a physician and other defendants negligently performed surgery are asking Michigan’s highest court to let their lawsuit go forward even though they didn’t meet any of the criteria for an exception. The ruling could overturn what has been the law for more than 20 years.

The question before the Michigan Supreme Court involves whether a case from 2000, Scarcella v. Pollack, was properly decided. In the case, the state’s top court ruled that a medical malpractice complaint filed without an affidavit of merit does not signal the beginning of legal proceedings and does not temporarily stop the statute of limitations for bringing a medical malpractice complaint.

Scarsella’s holding … effectuates the legislature’s intent to make a demonstration of merit at the inception of the action mandatory and to thereby deter frivolous claims. A decision to overrule Scarsella will create an open-ended exception” to the law, the Litigation Center of the American Medical Association and State Medical Societies and the Michigan State Medical Society (MSMS) tell the Michigan Supreme Court in an amicus brief in the case—Ottgen v. Katranji—that could potentially upend case law.

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.

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The AMA Litigation Center and MSMS brief cites numerous Michigan Supreme Court decisions that rejected arguments to overrule the Scarsella decision and others that established that medical liability complaints must be filed with an affidavit of merit.

Scarsella is clearly well-established precedent that this court has followed for over two decades. Certainly, overruling precedent is not a simple ask,” the brief tells the court.

When considering overturning precedent, the stare decisis doctrine requires that principles of law must be deliberately examined, including:

  • Was the decision wrongly reasoned or decided?
  • What will be the effects of overruling the decision, including on reliance interests and whether overruling would create an undue hardship?
  • Does the decision defy practical workability?
  • Do changes in the law or facts no longer justify the decision?

“Despite Scarsella’s detractors, there is no basis to now conclude that the decision is erroneous, unworkable or unjustified and can be overruled without chaos and dislocation,” the brief tells the court. “Quite the contrary, if Scarsella is overruled, dislocation is a given.”

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The AMA Litigation Center and MSMS brief notes that the statute recognizes there may be times when circumstances prevent a plaintiff from filing the affidavit with the complaint and it gives the trial court the leeway to grant an additional 28 days to file the affidavit if the plaintiff shows a good reason why they need the time.

Also, if the defendant doesn’t let the plaintiff access medical records in the time the law calls for, the affidavit can be filed within 91 days after the complaint is filed.

In those cases, an affidavit of merit filed later would still be considered timely and the medical malpractice complaint filed without an affidavit can signal the beginning of the legal proceedings and can temporarily stop the statute of limitations for bringing a medical malpractice complaint.

Scarsella is correct and should be upheld. Scarsella effectuates the Legislature’s intent to require an affidavit of merit to be filed with every medical malpractice complaint. It respects the limited statutory exceptions. It provides a clear and workable rule. And its holding is necessary to achieve the [affidavit of merit’s] intended purpose,” the brief says. “Disassembling the logic of Scarsella will effectively eliminate the temporal requirement designed to deter frivolous actions and swallow the exceptions.”