Medical malpractice; Notice & access to medical records; MCL 600.2912b(5); Zarzyski v Nigrelli; Failure to file an affidavit of merit (AOM); MCL 600.2912d(2) & (3); Scarsella v Pollak; Stare decisis; MCR 7.215(C)(2)

The court held that the trial court did not err by granting defendants-health system and medical providers summary disposition of plaintiff’s medical malpractice case. Plaintiff sued defendants for medical malpractice related to his birth. Along with his complaint he filed an ex parte motion to extend the filing of his AOM claiming that because defendants had not provided all the medical records he requested, he was unable to file an AOM. The trial court denied his motion and he never filed an AOM. The trial court eventually granted summary disposition for defendants. On appeal, the court rejected plaintiff’s argument that the trial court wrongly interpreted MCL 600.2912b and MCL 600.2912d. “Plaintiff’s counsel was under the mistaken belief that he was required to move for a 91-day extension before he would be able to file an AOM. But his mistaken belief is at odds with the plain language of MCL 600.2912d(3) and the immediately preceding subsection, MCL 600.2912d(2).” Because plaintiff’s counsel “followed the wrong procedure by filing an unnecessary ex parte motion, the trial court did not err by denying it.” In addition, the court was “not persuaded the late-filing of an AOM in this case would have amounted to an ‘empty gesture’ because plaintiff never did file an AOM. Indeed, our holding in Zarzyski was clear that ‘because [the] plaintiff did not file an AOM within 91 days of filing her complaint, summary dismissal is the proper result regardless of whether defendants violated MCL 600.2912b(5).’ Stare decisis requires this Court to follow its published decisions.” The court also rejected plaintiff’s claim that Scarsella was wrongly-decided. “Even if we agreed that our Supreme Court’s decision in Scarsella was wrong, this Court could not reverse under the doctrine of stare decisis.” Affirmed.