Glisson v. Gerrity

738 N.W.2d 237 (2007) Barry GLISSON, Successor Personal Representative of the Estate of Scott Glisson, Plaintiff-Appellant, v. Dianne GERRITY, M.D., Defendant-Appellee, and Robert Stuart Levy, M.D., Robert Levy, M.D., P.C., Daniel N. Scaff, M.D., and Pediatrics and Adolescent Medicine, Defendants. Docket No. 133991. COA No. 264433. Supreme Court of Michigan. September 21, 2007. On order of the Court, the application for leave to appeal the March 6, 2007 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE part IV(A) of the judgment of the Court of Appeals, and we VACATE parts III and IV(B) of the judgment as unnecessary in light of our reversal of part IV(A). The Court of Appeals held that the plaintiff's June 2, 2004 complaint should be dismissed with prejudice pursuant to Geralds v. Munson Healthcare, 259 Mich.App. 225, 673 N.W.2d 792 (2003), and Mouradian v. Goldberg, 256 Mich.App. 566, 664 N.W.2d 805 (2003). We overruled Geralds and Mouradian in Kirkaldy v. Rim, 478 Mich. 581, 734 N.W.2d 201 (2007). As Kirkaldy states, "[u]nder MCL 600.5856(a) and MCL 600.2912d, the period of limitations is tolled when a complaint and affidavit of merit are filed and served on the defendant." Kirkaldy, 478 Mich. at 585, 734 N.W.2d 201. Even a defective affidavit of merit will "toll the period of limitations until the validity of the affidavit is successfully challenged in `subsequent judicial proceedings.'" Id. at 586, 734 N.W.2d 201. In this case, the limitations period was tolled when the plaintiff filed and served the June 2, 2004 complaint and affidavit of merit. As a result, the limitations period had not expired when the plaintiff filed and served the August 9, 2005 amended complaint, accompanied by the June 3, 2005 amended affidavit of merit. Accordingly, we DISMISS without prejudice those claims concerning Dianne Gerrity, M.D. in the June 2, 2004 complaint, and we REMAND this case to the Wayne Circuit Court for further proceedings with regard to the amended pleadings. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.