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In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20150820_C316639_41_316639.OPN.PDF">Castro v. Goulet</a>, No. 316639, the Court of Appeals concluded that MCL 600.2912d(2) tolls the two-year statute of limitations for medical malpractice cases for plaintiffs to file the required affidavit of merit (“AOM”) within 28 days of the complaint, irrespective of when the underlying motion is granted.  In addition, the court concluded that plaintiffs demonstrated good cause where they delayed filing an action based on defendants’ assurances that plaintiff’s condition was temporary and would improve.  Judge Wilder dissented. 
  
Defendant doctors performed a left hip arthroscopy surgical procedure on plaintiff Ruben Castro. Plaintiffs alleged that Ruben suffered from erectile dysfunction after his surgery as a result of defendants’ negligent use of the perineal traction post by using excessive pressure for a period in excess of two hours.  The alleged malpractice occurred on February 9, 2011, so the limitations period was set to expire on February 9, 2013.  Plaintiffs filed their complaint and their motion to extend the time for filing an AOM under MCL 600.2912d(2) on February 4, 2013, and their AOM on February 26, 2013.  The trial court granted plaintiffs’ motion on March 8, 2013, but then granted defendants’ motion for summary disposition on the grounds that the action itself was untimely.  Plaintiffs appealed. 
  
Ordinarily, a medical malpractice complaint filed without an AOM is insufficient to commence the lawsuit and does not toll the statute of limitations.  However, “[u]pon motion of a party for good cause shown, the court in which the complaint is filed may grant the plaintiff . . . an additional 28 days in which to file the affidavit.”  MCL 600.2912d(2).  Although it is ultimately the granting of the motion that effectuates the 28-day tolling, not merely filing the motion, the tolling period runs from the date the complaint is filed.  The Court of Appeals concluded that plaintiffs’ action was timely because they filed their complaint within the two-year limitations period, the trial court granted their motion under MCL 600.2912d(2), and they filed their AOM fewer than 28 days after filing their complaint—the fact that the trial court granted plaintiffs’ motion after the expiration of the 28-day period was irrelevant. 
  
The Court of Appeals also concluded that plaintiffs demonstrated “good cause” under MCL 600.2912d(2) by stating that they would have filed the lawsuit earlier if defendants had not advised Ruben that his erectile dysfunction would subside and then completely phase out weeks or months after surgery.  The purpose of the AOM requirement is to deter the filing of frivolous medical malpractice claims.  Plaintiffs attempted, on the basis of defendants’ assurances, to achieve precisely the same effect. As such, the trial court had ample grounds to find good cause to allow the statutory extension. 
  
Judge Wilder <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20150820_C316639_42_316639D.OPN.PDF">dissented</a>, concluding that the trial court’s March 8, 2013 order had no tolling effect because it was granted after the statute of limitations expired on February 9, 2013.  In particular, Judge Wilder noted that plaintiffs did not request an expedited hearing of their motion to extend the time for filing the AOM, and they failed to emphasize on the cover page of their motion that there was an urgency in hearing the motion prior to February 9, 2013.

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Senior Counsel

Conor B. Dugan

Labor and Employment

COA: Under MCL 600.2912d(2), plaintiffs may file AOM within 28 days of medical malpractice complaint where delay is due to defendants’ assurances

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COA: Under MCL 600.2912d(2), plaintiffs may file AOM within 28 days of medical malpractice complaint where delay is due to defendants’ assurances

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