Medical malpractice; Affidavit of merit (AOM) requirement; MCL 600.2912d(1); Ottgen v Katranji; Castro v Goulet; Notice of intent (NOI)

The court held that plaintiff did not “file a timely and valid” AOM as required for a medical malpractice case and thus, the trial court erred in denying defendants summary disposition. Plaintiff mailed them his NOI on 5/24/21 and filed his complaint on 11/23/21. With the complaint, he “moved for an additional 28 days to file the required [AOM] under MCL 600.2912d(2).” He emailed defendants a “declaration of merit” on 12/22/21. The trial court granted his motion for additional time on 1/7/22 and he “filed his ‘declaration of merit’ with the trial court on [1/10/22]. Defendants moved for summary disposition under MCR 2.116(C)(7), arguing that the 28-day extension runs from the date of the complaint and, thus,” it ended on 12/21/21. They further contended his “‘declaration of merit’ was not valid because it did not indicate that it was made before a person having the authority to administer an oath or affirmation to the party making the declaration. The trial court denied defendants’ motion because it found that plaintiff’s affidavit was timely.” On appeal, the court noted it was undisputed that the complaint was filed on 11/23/21. Thus, plaintiff had until 12/21/21 to file his AOM with a 28-day extension. He admitted “he did not email his ‘declaration of merit’ to defendants until [12/22/21], and he did not file” it with the trial court until 1/10/22. As a result, he failed to file his AOM “within the 28-day extension. Further, plaintiff’s ‘declaration of merit’ did not indicate that it was made before a person having the authority to administer an oath or affirmation to the party making the statement as required by MCL 600.2912d(1).” Therefore, even if the court were to consider his “‘declaration of merit’ to be timely filed for the purposes of MCL 600.2912d(2), it was not a valid affidavit.”