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James WADE, Plaintiff-Appellant, v. William MCCADIE, D.O., and St. Joseph Health System, Inc. D/B/A Hale St. Joseph Medical Clinic, Defendant-Appellees.
Opinions in this case
Order Michigan Supreme Court Lansing, Michigan
Bridget M. McCormack, Chief Justice May 10, 2019 David F. Viviano, Chief Justice Pro Tem
Stephen J. Markman 156950 & (39) Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices JAMES WADE, Plaintiff-Appellant, v SC: 156950 COA: 335418 Iosco CC: 13-007515-NH WILLIAM McCADIE, D.O., and ST. JOSEPH HEALTH SYSTEM, INC. d/b/a HALE ST. JOSEPH MEDICAL CLINIC, Defendant-Appellees.
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On order of the Court, the motion to extend time is GRANTED. The application for leave to appeal the November 14, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
VIVIANO, J. (concurring).
I concur with the denial order because I believe the Court of Appeals reached the right result by upholding the trial court’s grant of summary disposition in favor of defendants under Scarsella v Pollak, 461 Mich 547, 549 (2000) (holding that an affidavit of merit (AOM) is necessary to toll the statute of limitations in a medical malpractice case). I write separately because I continue to question whether Scarsella was correctly decided. See Castro v Goulet, 501 Mich 884, 889 (2017) (VIVIANO, J., concurring) (stating my belief that under a plain reading of the statutory scheme, “the AOM has no effect on commencing a lawsuit for purposes of the statute of limitations”). Under my reading of the pertinent statutes, although dismissal may still be warranted under a different rule, it would not be warranted under MCR 2.116(C)(7) for failure to comply
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with the statute of limitations. 1 But since no party has asked us to reconsider Scarsella, 2 I concur with the Court’s denial order in this case.
1 Whether dismissal would still be warranted for failing to file an affidavit of merit if Scarsella were overturned and, if so, on what grounds, are interesting questions that would need to be addressed in an appropriate future case. 2 In arguing that the Court of Appeals should have applied equitable tolling, plaintiff points to Ward v Rooney-Gandy, 265 Mich App 515, rev’d 474 Mich 917 (2005), and Young v Sellers, 254 Mich App 447 (2002). These cases only call into question how Scarsella should be applied. Thus, plaintiff raises no argument as to whether Scarsella’s interpretation of the pertinent statutes is correct.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. May 10, 2019 d0507 Clerk