
    KIRKALDY v RIM
    Docket No. 129128.
    Decided July 11, 2007.
    Mary and William Kirkaldy brought a medical-malpractice action in the Wayne Circuit Court against Choon Soo Rim, M.D., and others. The court, Marianne O. Battani, J., dismissed the complaint without prejudice after determining the plaintiffs’ affidavit of merit to be defective. The Court of Appeals, Kelly, EJ., and Hood and Doctoroff, JJ., affirmed. 251 Mich App 570 (2002). The Supreme Court, in lieu of granting leave to appeal, partially vacated the judgment of the Court of Appeals and remanded the case to the Court of Appeals, directing the Court to consider the defendants’ argument that they were entitled to dismissal with prejudice because the period of limitations was not tolled by the plaintiffs’ filing of a defective affidavit of merit. 471 Mich 924 (2004). On remand, the Court of Appeals, Murphy and Cavanagh, JJ. (Kelly, EJ., concurring in the result only), held that, because the plaintiffs’ affidavit of merit was determined to be defective, the plaintiffs’ claim must be dismissed with prejudice. The majority, however, indicated that it would not have reached that result if it were not bound by Geralds v Munson Healthcare, 259 Mich App 225 (2003), and Mouradian v Goldberg, 256 Mich App 566 (2003). 266 Mich App 626 (2005). The Supreme Court ordered and heard oral argument on whether to grant the application or take other peremptory action. 477 Mich 1063 (2007).
    In a memorandum opinion signed by Chief Justice Taylor and Justices Weaver, Corrigan, Young, and Markman, the Supreme Court held-.
    
    
      A medical-malpractice complaint and affidavit of merit toll the statutory period of limitations until the validity of the affidavit is successfully challenged in subsequent judicial proceedings. If a defendant believes that an affidavit is deficient, the defendant must challenge the affidavit. If the challenge is successful, the proper remedy is dismissal without prejudice, leaving the plaintiff with whatever time remains in the period of limitations to file a complaint with a conforming affidavit of merit. Accordingly, the holdings of the Court of Appeals in this case are reversed, and Geralds, Mouradian, and their progeny are overruled.
    
      Justice CAVANAGH, concurring, agreed with the result reached by the majority but disagreed with the statement that “the period of limitations is tolled when a complaint and affidavit of merit are filed and served on the defendant.” MCL 600.5856(a) states that the period of limitations is tolled when a complaint is filed, regardless of whether an affidavit of merit is filed with the complaint. In this case, the period of limitations was tolled when the plaintiffs filed their complaint.
    Justice Kelly, concurring, joined the result of the majority opinion because the plaintiffs filed an affidavit of merit and thus Scarsella v Poliak, 461 Mich 547 (2000), which held that a medical-malpractice complaint filed without an affidavit of merit does not toll the period of limitations, does not control this case. Justice Kelly wrote separately, however, to note her concern that the issue decided peremptorily in Scarsella has never been fully briefed and argued, despite meritorious arguments indicating that the Court misread MCL 600.5856(a) in that case. The issue should be considered again more thoroughly.
    Reversed and remanded to the trial court.
    Limitation of Actions — Medical Malpractice — Affidavits of Merit — Tolling.
    A medical-malpractice complaint and affidavit of merit toll the statutory period of limitations unless the validity of the affidavit is successfully challenged in subsequent judicial proceedings, at which time the period of limitations resumes running (MCL 600.2912d[1]; MCL 600.5856).
    
      Mark Granzotto, P.C. (by Mark Granzotto), and Erlich, Rosen & Bartnick, P.C. (by Sheldon D. Erlich), for Mary and William Kirkaldy.
    
      Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman P.C. (by Raymond W. Morganti), for Choon Soo Rim, M.D., and Rim and Sol, M.D., EC.
    
      Saurbier & Siegan, P.C. (by Renée S. Siegan and Debbie K. Taylor), for Raina M. Ernstoff, M.D.; and Raina M. Ernstoff, M.D., EC.
    Amici Curiae:
    
      
      Olsman Mueller, P.C. (by Jules B. Olsman and Donna M. MacKenzie), for Citizens for Better Care.
    
      Janet M. Brandon for the Michigan Trial Lawyers Association.
   Memorandum Opinion. The issue presented in this case concerns the proper disposition of a medical-malpractice lawsuit after a court determines that the plaintiffs affidavit of merit does not meet the requirements of MCL 600.291.2d. The Court of Appeals held that, because plaintiffs’ affidavit of merit was determined to be defective, plaintiffs’ claim must be dismissed with prejudice. Kirkaldy v Rim (On Remand), 266 Mich App 626, 636-637; 702 NW2d 686 (2005). However, the majority of the panel indicated that it would not reach that result if it were not bound by Mouradian v Goldberg, 256 Mich App 566; 664 NW2d 805 (2003), and Geralds v Munson Healthcare, 259 Mich App 225; 673 NW2d 792 (2003). This Court scheduled oral argument on plaintiffs’ application for leave to appeal. 477 Mich 1063 (2007). In lieu of granting leave to appeal, we reverse the Court of Appeals and overrule Geralds, supra; Mouradian, supra; and their progeny. MCR 7.302(G)(1).

In Geralds and Mouradian, the Court of Appeals purported to rely on this Court’s opinion in Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000), to hold that filing a defective affidavit of merit is the functional equivalent of failing to file an affidavit of merit for the purpose of tolling the period of limitations. Therefore, the Court held that a defective affidavit of merit does not toll the period of limitations under MCL 600.5856. Because the issue presented in Scarsella is distinct from the issues presented in Mouradian and Geralds, the Court of Appeals erred in extending Scarsella’s holding to these cases.

Scarsella concerned the tolling effect of a medical-malpractice complaint filed without an affidavit of merit. This Court held that filing a medical-malpractice complaint without an affidavit of merit “is ineffective, and does not work a tolling of the applicable period of limitation.” Id. at 553. However, in the very next sentence, this Court noted that “[t]his holding does not extend to a situation in which a court subsequently determines that a timely filed affidavit is inadequate or defective.” Id. In a footnote to that sentence, this Court further stated that “[w]e do not decide today how well the affidavit must be framed. Whether a timely filed affidavit that is grossly nonconforming to the statute tolls the statute is a question we save for later decisional development.” Id. at 553 n 7 (emphasis in Scarsella).

Mouradian was the first attempt by the Court of Appeals at that decisional development. The Court held that the affidavit of merit was “grossly nonconforming” because it did not contain all the statutorily required statements. Because the affidavit was deemed “grossly nonconforming,” it was “insufficient to constitute an affidavit of merit within the meaning of the statute . ...” Mouradian, supra at 574. The Court went on to hold that “as a matter of law, plaintiffs’ complaint against defendants for the second surgery was not commenced because of their failure to file an affidavit of merit before the period of limitations expired ....” Id. Thus, under Mouradian, filing a “grossly nonconforming” affidavit of merit, similar to failing to file any affidavit, does not toll the period of limitations under MCL 600.5856(a).

In Geralds, the Court of Appeals extended the Mouradian rule beyond a grossly nonconforming affidavit to any nonconforming affidavit. The Geralds panel held that

whether the adjective used is “defective” or “grossly nonconforming” or “inadequate,” in the case at bar, plaintiff s affidavit did not meet the standards contained in MCL 600.2912d(1).... [P]laintiff s affidavit was defective and did not constitute an effective affidavit for the purpose of MCL 600.2912d(1) and, therefore, plaintiff filed a complaint without an affidavit of merit sufficient to commence a medical malpractice action. [Geralds, supra at 240.]

Although bound by Geralds, the panel in the present case criticized it as “especially harsh,” inconsistent with Scarsella, and inconsistent with MCL 600.5856(a). Kirkaldy (On Remand), supra at 635-636.

We agree that Geralds and Mouradian are inconsistent with Scarsella and MCL 600.5856(a). Under 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. Scarsella, supra at 549. In this case, as in Geralds and Mouradian, plaintiff filed and served a complaint and affidavit of merit. Thus, the period of limitations was tolled on that date. Recently, this Court held that “when an affidavit is filed, it is presumed valid. It is only in subsequent judicial proceedings that the presumption can be rebutted.” Saffian v Simmons, 477 Mich 8, 13; 727 NW2d 132 (2007). Therefore, a complaint and affidavit of merit toll the period of limitations until the validity of the affidavit is successfully challenged in “subsequent judicial proceedings.” Only a successful challenge will cause the affidavit to lose its presumption of validity and cause the period of limitations to resume running.

Thus, if the defendant believes that an affidavit is deficient, the defendant must challenge the affidavit. If that challenge is successful, the proper remedy is dismissal without prejudice. Scarsella, supra at 551-552. The plaintiff would then have whatever time remains in the period of limitations within which to file a complaint accompanied by a conforming affidavit of merit.

We reverse the Court of Appeals holding to the contrary and remand to the Wayne Circuit Court for further proceedings consistent with this opinion.

TAYLOR, C.J., and WEAVER, CORRIGAN, YOUNG, and MARKMAN, JJ., concurred.

CAVANAGH, J.

(concurring). While I agree with the result reached by the majority, I disagree with the majority’s formulation of its rule. Specifically, I believe that Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000), was incorrectly decided, so I cannot agree with the majority’s statement, ante at 585, that under the statutes at issue, “the period of limitations is tolled when a complaint and affidavit of merit are filed and served on the defendant.” Rather, I would hold that under the plain language of MCL 600.5856(a), the period of limitations is tolled when a complaint is filed, regardless of whether an affidavit of merit is filed with the complaint.

MCL 600.5856 states, in relevant part:

The statutes of limitations or repose are tolled in any of the following circumstances:
(a) At the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.

Clearly, the Legislature did not instruct that the period of limitations for a medical malpractice action would be tolled only when a complaint and an affidavit of merit are filed. In fact, as plaintiffs and their amici curiae point out, the Legislature considered and rejected a formulation of MCL 600.2912d that would have read, “If the complaint is not accompanied by the certificate required under this subsection, the complaint does not toll the statute of limitations as provided in § 5856(1) [sic].” See SB 270 as introduced on January 28,1993. Moreover, the Legislature amended MCL 600.5856 in the same public act used to enact the affidavit-of-merit requirement, 1993 PA 78, so it could have easily adjusted the language of MCL 600.5856(a) had it so desired. It did neither. This Court is not free to add language to a statute or to interpret a statute on the basis of this Court’s own sense of how the statute should have been written. Because the language of MCL 600.5856(a) is quite plain, I would hold that a period of limitations is tolled when a complaint is filed. And under that rule, I would conclude that when plaintiffs filed their complaint in this matter, the period of limitations was tolled.

Kelly, J.

(concurring). In Scarsella v Pollak, this Court held that filing a medical-malpractice complaint without an affidavit of merit “is ineffective, and does not work a tolling of the applicable period of limitation.” I did not join the majority opinion. I dissented because I did not think that we should decide the issue without the benefit of full briefing and argument. In this case, plaintiffs filed an affidavit of merit. Therefore, Scarsella is not controlling, and this case does not require us to determine whether Scarsella was correctly decided. Consequently, I join the result of the majority opinion.

But I write separately to note my concern that the issue in Scarsella has never received a full hearing from this Court. As Justice CAVANAGH points out in his concurrence, meritorious arguments exist indicating that the Court misread MCL 600.5856(a) seven years ago when it acted peremptorily in Scarsella. Whether the filing of a complaint without an affidavit of merit tolls the running of the statutory period of limitations should be again, and more thoroughly, considered by this Court. 
      
       Plaintiffs here filed an affidavit of merit that the circuit court later determined to he nonconforming with the requirements of MCL 600.2912d.
     
      
       Judge Kelly concurred in the result only.
     
      
       The order directed the parties to address three issues: “(1) whether filing a medical malpractice complaint with a defective affidavit of merit can toll the statute of limitations; (2) whether a defect in an affidavit of merit filed with a medical malpractice complaint can be cured without refiling the complaint; and (3) whether Geralds v Munson Healthcare, 259 Mich App 225 (2003), was correctly decided.” 477 Mich 1063 (2007).
     
      
      
         When this case was filed, MCL 600.5856 provided in part:
      The statutes of limitations or repose are tolled:
      (a) At the time the complaint is filed and a copy of the summons and complaint are served on the defendant.
     
      
       Nothing in this decision calls into question our decision in Scarsella.
      
     
      
       461 Mich 547; 607 NW2d 711 (2000).
     
      
      
        Id. at 553, quoted ante at 584.
     
      
      
        Scarsella, 461 Mich at 554 (opinion by Cavanagh and Kelly, JJ.).
     