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No. 129128
| Mary Kirkaldy and William Kirkaldy, |
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Mark Granzotto |
Plaintiffs-Appellants, |
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(Appeal from Ct of Appeals) |
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(Wayne - Battani, M.) |
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| Choon Soo Rim, M.D., Rim & Sol, M.D., P.C., |
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Debbie K. Taylor |
| Raina M. Ernstoff, M.D., and Raina M. Ernstoff, |
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Raymond W. Morganti |
| M.D., P.C., |
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| Defendants-Appellees. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiffs-Appellants' Application for Leave to Appeal>>
Plaintiffs-Appellants' Supplemental Brief>>
Plaintiffs-Appellants' Second Supplemental Brief>>
Defendants-Appellees Raina M. Ernstoff's' Brief in Opposition to Leave to Appeal >>
Defendants-Appellees Raina M. Ernstoffs' Supplemental Brief>>
Defendants-Appellees Choon Soo Rims' Supplemental Brief>>
Citizens for Better Care's Amicus Curiae Brief>>
Michigan Trial Lawyers Associations' Amicus Curiae Brief>>
Background
Mary and William Kirkaldy, sued Dr. Ernstoff and Dr. Rim, two board-certified neurologists. With their complaint, the Kirkaldys filed an affidavit of merit that was signed by a neurosurgeon. But the medical malpractice statute requires that an affidavit of merit must be signed by an expert who is board-certified in the same specialty as the doctor who is being sued. The trial judge determined that the plaintiffs’ affidavit of merit was defective and dismissed the case, but without prejudice. The defendants appealed, arguing that the dismissal should have been with prejudice because the statute of limitations had expired after the plaintiffs filed their complaint. The plaintiffs cross-appealed, arguing that their case should not have been dismissed at all, because their attorney “reasonably believed” that the affidavit of merit was satisfactory. The Court of Appeals affirmed the trial court’s ruling in a published opinion. Both the plaintiffs and the defendants appealed, and the Supreme Court remanded the case to the Court of Appeals to consider whether the statute of limitations was tolled by the filing of the plaintiffs’ defective affidavit of merit. On remand, in a published opinion, the Court of Appeals agreed with the defendants that the statute of limitations was not tolled and that the plaintiffs’ complaint should have been dismissed with prejudice. Two members of the Court of Appeals panel asked the Supreme Court to reconsider its decision in Scarsella v Pollak, 461 Mich 547 (2000), which held that, because filing a medical malpractice complaint without an affidavit was insufficient to commence a plaintiff's malpractice action, the statute of limitations was not tolled. The Court of Appeals also asked the Supreme Court to examine Court of Appeals opinions that have expanded the reach of Scarsella, such as Geralds v Munson Healthcare, 259 Mich App 225 (2003) and Mouradian v Goldberg, 256 Mich App 566 (2003). The plaintiffs appeal.
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