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Court reverses inappropriate grant of summary disposition where victim complied with Court Rule

When the Michigan Legislature adopted complicated new rules limiting where and how a medical provider could be sued for malpractice, it included a limited exception to the requirement that a legal complaint be accompanied by an Affidavit of Merit signed by another, comparable specialist. The Legislature held that if the victim demonstrated "good cause," he or she could delay filing the mandatory Affidavit of Merit for 28 days if the request was filed contemporaneously.  The implication was that if a cause of action was identified late, a victim would have at least one month in which to pull together the records and affidavits of merit necessary to meet the expert requirement necessary to initiate suit.  This rule became even more important when the Supreme Court's Republican, insurance-friendly majority held that any defect in the victim's pleadings cannot be "cured" by amendment.

In Castro v. Goulet and Tolhurst, the plaintiff availed himself of the 28 day extension with a timely motion, precisely as directed by statute.  The trial judge found that the victim had demonstrated "good cause" for the request, but later reversed himself and summarily dismissed the case for being filed defectively.  The plaintiff appealed and the Court of Appeals overturned the lower court's summary disposition.  The judges noted that the victim's attorneys had followed the precise language of the Court Rule on a timely basis, and that the defendants' arguments attempted to read the pertinent section out of the statute.  The judges also commented on the irony represented by the Defendants' failure to appreciate that the victim delayed preparing a suit in large measure because he had been reassured by the Defendants that his post-surgical complications would disappear in time.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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