On July 14, 2023, the Michigan Supreme made a significant change to medical malpractice law in Ottgen v. Katrannji, MD (Docket no. 163216), overturning a longstanding legal precedent that was in place for more than 20 years.
The prior precedent came from Scarsella v. Pollak. Under Scarsella, there was a specific requirement for plaintiffs filing medical malpractice cases to submit an “affidavit of merit” alongside their formal complaint. This affidavit verified that the case was valid and not frivolous. If an affidavit wasn’t provided, the statute of limitations would not be paused or extended.
However, the recent ruling in Ottgen v. Katrannji, MD, written by Justice Viviano, has changed this approach. The Michigan Supreme Court declared that the filing of an affidavit of merit is no longer necessary to start a medical malpractice case. Instead, the statute of limitations will be tolled when a properly submitted complaint is filed and served within the required time limit.
This new decision clarifies that the requirement for an affidavit of merit does not impact tolling (pausing) of the statute of limitations. In simple terms, it means that the clock on the time limit for filing a medical malpractice case will stop as soon as a complaint is filed and served, regardless of whether an affidavit of merit is included.
Justice Viviano explained that this change is based on an interpretation of various legal statutes that govern the initiation of legal actions. The Court found no provision indicating that the tolling of the statute of limitations for medical malpractice cases requires anything beyond the timely filing and service of a complaint.
The ruling also addressed the previous reasoning behind Scarsella’s requirement for an affidavit of merit. While an affidavit of merit is indeed necessary, Scarsella mistakenly linked its requirement to the tolling of the statute of limitations. The Court clarified that the two aspects should be treated separately and that a case could be challenged for lacking an affidavit of merit without affecting the tolling of the statute of limitations.
The Michigan Supreme Court also considered whether the principle of stare decisis, which generally upholds previous legal decisions, should apply to Scarsella. However, it was determined that Scarsella had various issues and inconsistencies, including departing from the plain meaning of multiple statutes, making its overturning justifiable.
In practical terms, this ruling means that plaintiffs in medical malpractice cases can now toll the statute of limitations by timely filing and serving a complaint. Even if an affidavit of merit is not included or is flawed, the statutory time limit will still be tolled. As a result, defense attorneys in these cases should focus on addressing the absence or deficiency of the required affidavit, rather than solely concentrating on statute of limitations concerns.
This landmark decision by the Michigan Supreme Court brings a significant change to the landscape of medical malpractice litigation, ensuring a more balanced approach for both plaintiffs and defendants in pursuing or defending against such cases.
For more than 20 years, Cameron Getto has litigated complex cases involving professional negligence, products liability, pharmaceuticals, complex torts, employment issues, and commercial disputes, representing an array of clients that include individuals, professionals, non-profits, businesses, and corporations. Cam honors the trust that they’ve placed in him by striving to achieve the best possible results.
