Court holds Affidavit of Merit is not a pleading; may not be amended; case must be dismissed
Bystanders hoping that the elevation of Justice Zahra to the Supreme Court might result in a moderation of the partisanship and judicial activism of the Engler majority were disappointed this week when the Court handed down three 4-3 rulings dismissing injury claims. Justice Zahra wrote the majority opinion in Ligons v. Crittenton Hospital, a death claim against the hospital for alleged medical malpractice.The Defendants in Ligons had argued that the case should be dismissed because the original Affidavit of Merit executed by physicians supporting the claim did not adequately explain how a delay in diagnosis and treatment caused the Plaintiff's decedent's death. The Plaintiffs sought the right to amend the Affidavits to more clearly specify their theory of why a delay resulted in death.
The Court held that Affidavits which must accompany a malpractice complaint are not "pleadings" and therefore the Court Rule allowing all pleadings to be amended does not apply to an Affidavit. Thus, this key [mandatory] document which must be filed by the lay-person plaintiff in order to INITIATE a malpractice suit, before any discovery, must be error-free and thoroughly describe to the health care provider the exact nature of his or her mistake and the resulting consequences. Given the preceding holdings over the past fifty years, this is a disappointing rejection of the long-standing principle that mandatory documents essential to a party's pleadings may be amended in order to assure that justice is achieved.