Scarsella v. Pollak

In Scarsella v. Pollak, 232 Mich App 61, 62-63; 591 NW2d 257 (1998), the plaintiff filed the complaint just before the expiration of the two-year limitations period. No affidavit of merit was filed with the court or served on defendant. The Scarsella Court agreed with the trial court's analysis that the filing of the complaint was a "nullity" because it was unaccompanied by an affidavit of merit. Therefore, the action was not commenced and the statute of limitations was not tolled. The Court affirmed the trial court's grant of summary disposition to defendant because the limitations period had expired before a complaint with an affidavit of merit was filed. The Court held that a medical malpractice complaint filed without an affidavit of merit "is insufficient to commence the lawsuit." Scarsella, 232 Mich. App. at 64. In Scarsella v. Pollak, 461 Mich 547, 548; 607 NW2d 711 (2000), the Supreme Court of Michigan adopted this Court's opinion in Scarsella v. Pollak, 232 Mich App 61; 591 NW2d 257 (1998), in which this Court determined that the limitations period is not tolled where a medical malpractice complaint is filed without an affidavit of merit. Id. at 64. However, the Supreme Court limited that decision to cases where no affidavit of merit was filed with the complaint. It specifically declined to address a situation, such as that here, where an affidavit of merit filed with a complaint is later found inadequate. However, because we find that the complaint was untimely, regardless of whether the affidavit of merit was adequate, we need not address the question whether a limitations period is tolled when the affidavit of merit filed with a complaint is inadequate. The Court ruled a medical malpractice complaint without an affidavit of merit is insufficient to commence an action for purposes of tolling the limitation period and, consequently, where an affidavit of merit is filed after the expiration of the limitation period the action is time barred, even though the complaint was filed before the expiration of the period of limitation. Id. at 64-65.