Affidavit from a Physician That Did Not Qualify As An Expert Witness

In Christy v. Detroit Osteopathic Hospital Corp, unpublished opinion per curiam of the Court of Appeals, issued 10/29/1999 (Docket No. 205827), the plaintiff filed an affidavit of merit with the complaint, but the affidavit was from a physician that did not qualify as an expert witness under MCL 600.2169; MSA 27A.2169.

The panel held that, although the plaintiff had not fully complied with the affidavit requirement, dismissal was not appropriate.

The panel relied on VandenBerg in holding that dismissal was not a mandatory sanction for failure to comply with the affidavit requirement.

The panel held that the plaintiff had indeed filed an affidavit of merit, thus properly commencing the action.

Therefore, the trial court's denial of the defendant's motion for summary disposition was affirmed.

In Shenduk v. Harper Hospital, unpublished opinion per curiam of the Court of Appeals, issued 10/29/1999 (Docket Nos. 199547 and 200389), a different panel affirmed the trial court's grant of summary disposition to the defendants because the plaintiff failed to file an affidavit of merit that complied with the statutory requirements before the limitation periods had expired.

As in Christy, the plaintiff had filed an affidavit with the complaint, but the affidavit was not signed by a physician who met the statutory expert-witness qualifications.

The majority concluded that the complaint was therefore properly dismissed.

Judge Murphy, dissenting in part, noted that under VandenBerg, the technical noncompliance with the statute did not merit dismissal because the statutory purpose was served.

The plaintiff had filed an affidavit with the complaint; however, the affidavit was technically deficient.

Judge Murphy also noted that the analyses of VandenBerg and Scarsella appear contradictory.

Nonetheless, the majority affirmed the dismissal of the plaintiff's complaint.

Therefore, on the same day, the Court reached opposite conclusions in two factually similar cases.