Medical malpractice; Motion to deem admissions admitted; MCR 2.302(G)(1) & (2); MCR 1.109(E)(2) & (3); Effect of pro se litigant status; Bachor v. City of Detroit; People v. Herrera; Allowing plaintiff’s lawyer to withdraw; Argument raised for the first time in a motion for reconsideration; Vushaj v. Farm Bureau Gen. Ins. Co. of MI; Claim that plaintiff’s former lawyer & the lawyer for defendants-Dr. Stone & Ear, Nose & Throat Consultants (ENT) colluded against her; Right to a jury trial; Right to equal protection; Waived issues; Walters v. Nadell

The court reversed the trial court’s order deeming the requests for admission admitted and remanded with instructions to provide plaintiff-Russell “an adequate opportunity to sign her answers in accord with MCR 2.302(G)(2) and MCR 1.109((E)(3).” It also vacated the order granting defendants-Dr. Stone and ENT summary disposition because it relied on the admissions that were improperly deemed admitted. Finally, it vacated the order awarding them taxable costs under MCR 2.625 since they were no longer the prevailing parties. This medical malpractice case arose from a total thyroidectomy performed on Russell by Dr. Stone while he was employed by ENT. On appeal, Russell argued “that the trial court abused its discretion by deeming Dr. Stone and ENT’s requests for admission admitted.” In their motion, they claimed that “no person (neither the party nor an attorney) has signed the responses in violation of MCR 2.302(G) and 1.109(E).” Both provisions have signature requirements. Russell was a pro se litigant. The court concluded that, to the extent the trial court found that she “failed to promptly sign the answers after the omission was called to her attention, the [trial] court clearly erred. Russell’s notification of the missing signature came by way of the motion to deem her to have admitted everything she was asked to admit.” There was “no indication in the record that the trial court alerted Russell to the missing signature.” The hearing on the motion was held approximately a week after her receipt of it. During that week, she submitted “a signed ‘Response to Defendant’s Motion to Dismiss’ in which she contested the claim that she failed to provide answers on the ground that her nephew had submitted those answers to” counsel for Dr. Stone and ENT. Although the “response did not supply the missing signature, it was an attempt to correct the record and to indicate that she stood by her answers. In totality, these circumstances” suggested that she was given insufficient opportunity to correct the missing signature after it was brought to her attention. “Her actions were not so dilatory as to constitute an abuse the discovery process, and the missing signature caused no disadvantage to Dr. Stone or ENT. Despite the trial court’s awareness of its obligation to provide some leeway to a pro se litigant such as Russell, striking Russell’s response pursuant to MCR 2.302 or MCR 1.109 was a drastic sanction that resulted in treating her unsigned answers as admissions, which then formed the basis for dismissing her case on summary disposition.”