March 15, 2006, Introduced by Senator PATTERSON and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending section 2912d (MCL 600.2912d), as amended by 1993 PA
78.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2912d. (1) Subject to subsection (2), the plaintiff in an
action alleging medical malpractice or, if the plaintiff is
represented by an attorney, the plaintiff's attorney shall file
with the complaint an affidavit of merit signed by a health
professional who the plaintiff's attorney reasonably believes meets
the requirements for an expert witness under section 2169. The
affidavit of merit shall certify that the health professional has
reviewed the notice and all medical records supplied to him or her
by the plaintiff's attorney concerning the allegations contained in
the notice and shall contain a statement of each of the following:
(a) The applicable standard of practice or care.
(b) The health professional's opinion that the applicable
standard of practice or care was breached by the health
professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the
health professional or health facility in order to have complied
with the applicable standard of practice or care.
(d) The manner in which the breach of the standard of practice
or care was the proximate cause of the injury alleged in the
notice.
(2) Upon motion of a party for good cause shown, the court in
which the complaint is filed may grant the plaintiff or, if the
plaintiff is represented by an attorney, the plaintiff's attorney
an additional 28 days in which to file the affidavit required under
subsection (1).
(3) If the defendant in an action alleging medical malpractice
fails to allow access to medical records within the time period set
forth
in section 2912b(6) 2912b(5), the affidavit required under
subsection (1) may be filed within 91 days after the filing of the
complaint.
(4) Subject to subsection (7) and except for a formal defect
to which subsection (6) applies, a defendant who wishes to
challenge an affidavit of merit filed under this section because of
a formal defect shall, within 91 days after the affidavit is served
on the defendant, file with the court and serve on the plaintiff a
written challenge stating the alleged defect with sufficient
specificity to give the plaintiff notice of the defect. A plaintiff
who is served with a challenge under this subsection or a motion
based on a formal defect under subsection (6) may file and serve an
affidavit correcting only the alleged defect within 63 days after
being served with the challenge or motion. The correcting affidavit
shall be given by the same affiant who gave the original affidavit
unless the original affiant has become unable to give an affidavit
because of death or disability. The correcting affidavit relates
back to the date the original affidavit was filed unless otherwise
ordered by the court.
(5) Subject to subsection (7), a defendant who wishes to
challenge an affidavit of merit that has been challenged under
subsection (4) and not corrected or an affidavit that has been
corrected under subsection (4), because of a formal defect, shall
file a motion challenging the affidavit not later than 21 days
after the corrected affidavit is served or, if a corrected
affidavit is not served, 21 days after the time to serve the
corrected affidavit under subsection (4) has passed.
(6) Subject to subsection (7), a defendant who wishes to
challenge an affidavit of merit filed under this section because of
a substantive defect or a formal defect that the defendant for good
cause did not discover before the time for serving a challenge
under subsection (4) shall file a motion challenging the defect not
later than 35 days after the ordered close of discovery in the
action or 35 days after the completion of the deposition of the
affiant, whichever is later. The time to challenge an affidavit of
merit under this subsection may be extended by the parties in a
written stipulation filed with the court or by order of the court
on a showing of good cause. A formal defect described in this
subsection may be corrected under subsection (4). A substantive
defect may not be corrected under subsection (4).
(7) An affidavit of merit filed under this section may be
challenged at any time for a defect resulting from the intentional
misconduct of the plaintiff or the plaintiff's attorney. A defect
described in this subsection may not be corrected under subsection
(4).
(8) If an affidavit required by this section is taken before a
notary public or justice of the peace in another state, it is not
necessary that the signature and official status of the notary
public or justice of the peace be certified by the clerk of a court
as required by section 2102(4).
(9) As used in this section:
(a) "Formal defect" means a defect to which 1 or both of the
following apply:
(i) The defect is in the notarization of the affidavit.
(ii) The defect results from an inadvertent clerical error, a
typographical, grammatical, or punctuation error, improper
pagination, or missing pages, including a page with a signature if
the signed page was in existence at the time the affidavit was
required to be filed under subsection (1), (2), or (3).
(b) "Substantive defect" means a defect that is not a formal
defect.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 1150
of the 93rd Legislature is enacted into law.
Enacting section 2. This amendatory act applies only to civil
actions filed on or after the effective date of this amendatory
act.